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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. You are the responding party if adjudication proceedings have been commenced against you. If you suspect that adjudication proceedings are likely to be issued against you or you have been served with a Notice of Adjudication, you must be prepared. You often have a very limited time to respond, and any jurisdiction arguments have to be raised at the earliest possible opportunity. 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, poorly presented defence or will ignore procedural errors.
Here are five great tips for defending adjudication proceedings (plus a bonus tip):
Tip 1: Ensure you read the contract thoroughly
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, so check that the referring party has done so.
Tip 2: Collect your evidence and documents
Check you are already aware of the dispute or difference which has been referred. If you are aware that adjudication proceedings are about to be commenced, begin to collate your evidence and documents. Once it has started, you have a very limited amount of time to prepare your response.
Tip 3: Don’t ignore or delay in responding
If you receive a Notice of Adjudication and then a Referral Notice, don’t ignore them or delay responding. The decision of the adjudicator is final and binding unless and until a court or arbitrator overturns it and it is enforceable in the courts. Your response must usually be prepared and served within 7 to 14 days. You must include any defence to the claim, including all legal arguments and any cross or counterclaim, including all evidence, witness statements and supporting documentation. The adjudicator will make a decision based upon what is provided to it and may not ask for further information. Make sure your submissions are concise, explain your position clearly and can be easily read and cross-referenced. Do not delay taking professional legal advice.
Tip 4: Make any potential challenges at the earliest possible opportunity
Make any challenges to the jurisdiction of the adjudicator or arguments that there has been a breach of rules/procedure at the earliest possible opportunity but don’t wait for a decision on this to begin preparing your response. Additional time may not be provided for the response whilst these issues are considered.
Tip 5: Request more time if needed
If you need more time, ask for it but don’t count on it being given. The 28 day period for the adjudicator’s decision can be extended by 14 days with the agreement of the referring party or beyond with the agreement of both parties.
Bonus tip:
Avoid holidays and other commitments during adjudication
Make sure you (and anyone who 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.
It is essential to ensure that you put your defence forward in the best possible way, and as the responding party, you will have a very limited amount of time to do this. It is also essential to make any challenges to the validity of the adjudication proceedings at the earliest possible opportunity. The courts do not take kindly to jurisdictional challenges being brought in enforcement proceedings that should have been raised earlier. Taking professional legal advice in advance if there is a prospect of adjudication proceedings being commenced against you or as soon as the Notice of Adjudication is received can make the difference between success and failure.
Here to help
Our specialist Construction Team routinely advises on many construction disputes, including construction adjudication proceedings. If you would like further information or assistance, you can our Construction Team below.