In terms of dispute resolution, construction adjudication is a quick process and can provide a swift and efficient resolution to a construction dispute. The appointed adjudicator has just 28 days to make a decision from the date that the referral is served, although this can be extended.
The party commencing the proceedings is known as the referring party, and it is essential for it to be prepared for the adjudication. There is often only a single opportunity to state your case, and there are complex procedural issues to be satisfied. Do not think that the adjudicator will make good a poorly presented case or will ignore procedural errors. The worst case is that you may get a successful decision from an adjudicator but are unable to enforce it due to a procedural error.
Here are five great tips for commencing adjudication proceedings (plus a bonus tip).
Read the contract (assuming there is one) and check that it includes the right to refer disputes to adjudication.
The contract will set out the procedure and the timeline to follow, including any notice requirements and how the adjudicator is to be selected. This must be strictly followed.
Ensure that your opposing party is aware of the claim and that it has either been ignored or rejected. There has to be a dispute or difference of which both parties are aware.
Allow time to prepare your documents in advance of issuing proceedings. In most cases, you only have seven days from the service of your Notice of Adjudication to secure the appointment of an adjudicator and serve your Referral Notice. It is not until you have finished drafting the Referral Notice that you will know for sure what questions you want the adjudicator to address and ensure both notices reflect this.
Make sure that your Referral Notice is concise, explains the dispute clearly and sets down the questions you want the adjudicator to answer. Be very clear about those questions, as the starting position is that an adjudicator can only answer the questions included in the Notice of Adjudication.
Include all legal arguments and evidence that you want to rely upon, including any witness statements and supporting documents and arrange them in a way that they can be easily read and cross-referenced.
Make sure you (and anyone you may need to provide input) have no holidays or other commitments in the adjudication period. Weekends and holidays (other than bank holidays) are included in the 28 days in which the adjudicator has to reach a decision, and they are frequently treated as periods in which a response must be provided. You never know when you may need to respond to a submission from the opposing party or answer a question from the adjudicator, so you must be available.
There are many other pitfalls that can derail adjudication proceedings or lead to an unenforceable decision, leading to wasted costs and time.
It is also essential to ensure that you put your case forward in the best possible way. Taking professional advice at the outset can make the difference between success and failure.
Our specialist Construction Team routinely advises on a broad range of construction disputes, including construction adjudication proceedings. If you would like further information or assistance, you can contact our Construction Team below.