You are on page 1of 8

Chapter 2 : Research Methodology

2.1

Introduction

Every research has its own research methodology in striving to achieve the aim and objectives of the
research. The methodology adopted in a legal type of research is relatively different from the research
methodology used in other type of research. It basically involves the process of carrying out critical
analysis on law reports rather than putting up questionnaires or having case studies. According to
Holborn (2006), legal research skills are best learned by practising rather than through reading. And
the process of analysing and understanding the cases may at times be difficult for someone who has
rather little knowledge on legal studies. Therefore, useful references have been used to assist the
process of carrying out this research.
This chapter basically describes the methodology used in carrying out the research in order to achieve
the aim and objectives of the study as identified in section 1.2. The methodology involved several
stages identified as collection of secondary data, literature review, collection of primary data,
statistical analysis, legal analysis, and the findings, conclusion and recommendation. Every stage is
explained in the following sub headings according to its sequence in the research process.
2.2

Collection of Secondary Data

The first stage involves the process of gathering secondary data being literatures relating to the area of
this research. Basically the data collected will be used for literature review on the topic of
adjudication, where for the purpose of this research, refers to UK adjudication system through
legislation being the Housing Grants Construction and Regeneration Act 1996 (the Act) which came
into force on 1st May 1998. The focus of the data collection is on the history, development and
procedure of adjudication, and with specific interest on the issue of challenging the enforcement of
adjudicators decisions. The information is collected from various publications which include relevant
14

textbooks, journals, articles, seminar papers, internet websites, as well as legislation being the Act and
the Scheme. All the information collected is used to carry out the literature review which comes in the
next stage of the research methodology process.
2.3

Literature Review

At this stage, a comprehensive review of literature is carried out on the data collected from the earlier
stage. Basically, from this review, it is hope that the first objective set out in section 1.2 is achieved.
The first part of the literature review is on the overall adjudication system in the UK covering the
history of how adjudication prior to 1st May 1998 was first introduced, as well as the development of
the adjudication after the Act came into force. Procedure involved in adjudication starting from the
initiation stage until the enforcement stage is also reviewed under this section. All the data is written
up to make up the first literature chapter being Chapter 3.
The second part of the literature review is on the issue of challenging the enforcement of adjudicators
decisions. This part is basically the main part of this stage which makes up Chapter 4 of this research.
The grounds that have been used by the resisting parties to make the challenges of the enforcement
proceedings are identified, classified and described according to the nature of the challenges made.
This part of the literature review is written as chapter 4 in this research. Accordingly, the second
objective of this research is hoped to be achieved at this stage.
2.4

Collection of Primary Data

This stage involves the process of collecting the primary data for this research which is law reports on
court cases relevant to the issue of challenging the enforcement of adjudicators decisions reported in
the UK within the last 10 years beginning from the date the Act came into forced. The law reports are
collected from two electronic finding aids websites which are LexisNexis Butterworths and Westlaw
UK. Both were selected because they provide access to an extensive set of full text legal resources,
including UK Cases and Legislation, covering both reported and unreported cases (Holborn 2006,

15

pp.172-3, pp.194-5). Besides that, both websites are found to be very user friendly. Furthermore, the
researcher as a student has free excess to both websites.
According to Holborn (2006, p.4), an effective research strategy depends on the selection of the best
starting point. Therefore, before the searching of the case is carried out, it is necessary for the
researcher to first consider the relevant terminology with awareness to the specific technical language
and their synonyms. The terms that were used in locating the relevant court cases were adjudication,
adjudicator, award, decision, enforcement, summary judgement, and declaration. Besides that, specific
terms of issues on challenge that were known to the researcher were also used which includes,
jurisdiction, no dispute, no contract, contract in writing, multiple disputes, late decision, natural
justice, set-off, and insolvency, which helps both to narrow the search as well as to wider the search.
Apart from that this specific terms also helps to save time in categorising the cases according to their
respective grounds of challenge. In order to minimise the probability of cases being left out, the lead
authority for cases on issues that were identified from the literature review carried out earlier, are used
to further identify significant cases that were cited in those cases, as well as other succeeded cases that
cited these lead cases, which also helps in categorising the cases accordingly.
Once the cases are identified, they are put through a screening process for the purpose of identifying
and selecting the appropriate case samples. Cases collected are read briefly to ensure that they are
cases that involves challenging an application to enforce an adjudicators decision or cases that
involves a sought for declaration that the adjudicators decision were null or invalid, or it could be a
declaration that the adjudicators decision is effective, but are being challenge by the other party. This
is to ensure that the cases are within the scope of this research. Moreover, from this screening process,
the cases are grouped according to their similarities in terms of the nature of the challenge or grounds
used to make the challenge. These grounds have been pre identified from the literature review
described in section 4.3. The process also provides an opportunity for the researcher to ensure that the
cases selected are adjudication within the 10 years range of adjudication through legislation which
deals with disputes in the UK construction industry.

16

2.5

Statistic Analysis

All the cases indentified in from the preceded stage are then put through a statistical analysis stage.
The main purpose is simply to achieve the third objective identified in section 1.2, which is to identify
cases that will be legally analysed in the coming stage of this research process. This stage involves
three parts of analysis. The first part of the analysis involves the presentation in bar chart of the
number of cases according to ten main grounds used to make the challenge of the enforcement
proceedings which were identified earlier in section 4.3. The objective is to identify the two most
widely used grounds for resisting the enforcement. Besides that, to confirm any finding made in the
literature review on the popularity of the grounds for challenge that is available.
It is noted that only two main grounds are selected because due to time limitations, it will be difficult
to cover all of the main grounds of challenge that have been identified. It is hoped from these top two
grounds, more coverage of relevance to the industry can be provided. Moreover, the high number of
the challenges initiated the need to further investigate why such popularity is gained, as well as
allowing thorough coverage of the courts decisions on the issue selected. It was also assumed that the
popularity of these grounds may encourage its used in the future therefore this research would still be
a relevant reference to the industry in the future. Furthermore, the grounds with low number of cases
may no longer be relevant to the industry.
The two top grounds identified are then further analysed under the second and the third part of the
analysis. At this stage, the two main grounds are analysed according to their further categorisation of
basis for their arguments to make up the challenges. For example, in challenging an adjudicators
decision on grounds that the adjudicator had no jurisdiction, bases of challenge that can be used are
allegations that the contract was not in writing, there was no dispute, the adjudication was with a
wrong party, and many more. These categorisations of basis of challenge are as identified in the
literature chapter under section 4.3. Basis used to make up the challenges are also presented in a way
to illustrate the number of cases where the challenges made were successful and unsuccessful, as well
as those that were not considered by the courts.
17

Nevertheless, the main objective from both this second and third part of the analysis is to further
identify the two most commonly used basis of challenge for each of the top two main grounds
identified earlier in the first part of the statistical analysis. This is to further secure the third objective
of this research. The findings from this analysis are also used to identify cases that will be further
analysed in the next and core stage of this research. Again, the reasons why only two bases for each of
the two main grounds are selected are because of the time limitation and the need for relevance of the
reference in the future. All the statistical analysis and findings are written up as Chapter 5.
2.6

Legal Analysis

This stage is the core of this research which involves analysis on the selected case sampling. The court
cases that have been identified from the statistical analysis described in section 2.4, specifically those
that falls within the categorisation of the four commonly used bases for the two main grounds of
challenge, as described in section 2.5 and as identified in section 5.3.1 and section 5.4.1, are put
through to a basic brief reading process. The process begins with skim reading, checking the skim
reading and making notes. At this point the procedural history and facts disputed by the parties are
noted down, as well as finding and listing the issues brought up in the cases. Once the issues are
identified, the cases are analysed according to their similarities in the issues. From here, the law
reports will be read through again, but this time more thoroughly in order to understand the issues in
the cases.
According to Hanson (2003, pp.82, 85), the process of understanding the issues are not somewhat
easy, that may require re-reading, as well as understanding the procedural history of the case therefore
which may be very helpful. It is necessary to understand the rationale behind the resistance of the
challenge party, but what are more concerned in this research are the principles adopted by the courts
in dealing with these cases. It would be wise to note the operative rules of law quoted in the cases,
matters considered by the courts in making their judgements, as well as the decisions held by the
courts. Particular attention to the approach taken by the courts that differ from one another is to be
given. These differences are needed to be clarified by interpreting the reasoning given by the courts in
18

making their judgement, as well as explaining their implications (Chatterjee 1997, p.50). All matters
obtained from this analysis is summarised in a schedule to ease the writing up process.
Apart from that, opinions or comments expressed by various authors on the cases being analysed or
the issues being discussed are also considered in the analysis process. These opinions and comments
are obtained from journals, articles and relevant textbooks as identified from the stage described in
section 2.2. The purpose is simply to review what others thought of the courts decision in the cases
and the issues being discussed in the analysis, and it may also assist in understanding and giving
broader view of the issue. However, according to Chatterjee (1997, p.57), it would be wise not to be
influenced by these expressed opinions, but rather to depend on the primary source of the related
information. Further to that, personal views of the researcher are also included in the analysis where it
felt to be necessary.
Basically, the importance of this stage is to achieve the fourth objective of this research as stated in
section 1.2. Nevertheless, the most important thing in carrying out this analysis is to ensure that the
fifth objective can be attained. From the critical examination of the cases, the legal principles
governing the determination of the challenges made on the enforcement proceedings can be identified,
highlighting the majority approach taken by the courts. Accordingly, the analysis is written
systematically into chapter 6 and 7 of this research.
2.7

Findings, Conclusion and Recommendation

This stage deals with the final chapter being chapter 8. Findings from the research carried out are
finally summarised in this segment covering findings obtained from the statistical analysis, as well as
the legal analysis. The whole outcome of this research is then concluded, highlighting the achievement
of the objectives laid out at the beginning of this research under section 1.2. Finally, some
recommendations to the outcome are drawn at the end of the final chapter, which secures the final
objective of this research set out in section 1.2. The writing up comes accordingly. The whole structure
of the research methodology adopted for this research is presented in Diagram 2.1.

19

RESEARCH METHODOLOGY

Collection of
Secondary Data

Collection of
Primary Data

Relevant textbooks,
journals, articles,
seminar papers,
internet websites, the
Act and the Scheme

Relevant law reports


on UK cases within the
last 10 years, law
journals, the Act and
the Scheme

Literature Review

Statistical
Analysis

Writing up of
Chapter 3 &
Chapter 4

Writing up of
Chapter 5

Legal Analysis

Writing up of
Chapter 6 &
Chapter 7

Findings,
Conclusion &
Recommendation

Writing up of
Chapter 8,
Chapter 1 &
Chapter 2
Checking &
Compilation

Diagram 2.1- Flowchart of Research Methodology


20

2.8

Conclusion

As a conclusion, the methodology adopted is carefully planned and implemented accordingly to ensure
that the aim and objectives of this research can be achieved at the end of this research. The process
include several stages covering the collection of secondary and primary data, literature review,
statistical analysis, legal analysis, as well as the findings, conclusion and recommendation of the
whole research. References are made to relevant legal research methodology textbooks.

21