Construction Adjudications – The Do’s and Don’ts
Adjudication is an alternative method for resolving disputes, without resorting to lengthy and expensive court proceedings.
Originally the intention of the Housing Grants, Construction and Regeneration Act 1996 (‘Construction Act’) was to create an informal procedure. Today however, Adjudications have developed into a more complex process, in which parties argue technical points and often serve detailed submissions, witness statements and expert evidence.
When in the middle of a dispute, it is easy to sometimes forget that Adjudicators and your opponents are human, and this human element can be important. If you are engaged in an Adjudication, it is worth remembering a few golden rules.
- Identify and focus on the key issues. Lose the kitchen sink – keep your submissions to the key points that are at the heart of the dispute.
- Avoid emotional or petty points.
- Take advice upon legal points as they could turn a win into a loss – and a possible loss into a win.
- Clear space in your diary to deal with it. An Adjudication is a whole Court case in 4 weeks (sometimes extended). Urgent work will take up a lot of time and needs to be dealt with at very short notice, particularly if defending an Adjudication.
- If using photographs or plans – explain what they show. Remember, you know what the photos and plans show but will the Adjudicator?
- Start gathering together all of the relevant paperwork, as soon as possible. The most important documents will be the contractual documents which stipulate the agreed contractual terms, expert evidence such as surveyor reports/assessments and communications between the parties which deal with the key issues of the dispute.
- Make the Adjudicator’s life easy. Present your case well:
- Paginate your bundles
- If using electronic bundles – use bookmarks
- Make sure your references are correct – amendments can easily cause your references to change.
- If using hardcopies, make sure the ring binders are not damaged or too full
- Only raise genuine jurisdictional arguments and raise them at the earliest opportunity.
- Keep communications to the necessary only – persistent calls or emails will only annoy the Adjudicator.
- If you were granted an extension – agree to a (reasonable) request for an extension.
- Keep the Replies short and concise and address only new matters. Repetition serves no purpose.
- Be Respectful – everyone is working through the issues and the Adjudicator will form an opinion on the reasonableness of a party, during the Adjudication process.
- Don’t assume that there will be any further opportunity to provide evidence or submissions. Your submission should be comprehensive. If you anticipate the other side raising an issue, deal with that issue.
- Do not expect a lengthy extension of time. If an extension is granted, it will usually be for a few working days. Extensions of time longer than 5-10 working days are exceptional. Extensions may be refused.
- Do not patronise the Adjudicator – remember they are experienced professionals.
- Consider whether settlement is appropriate and whether open or ‘without prejudice’ offers should be made.
- Do not include ‘without prejudice’ or privileged material in the papers – remember the Adjudicator cannot consider these and this only serves to increase the volume of material the Adjudicator has to go through, which will be an annoyance.
- If the Adjudication is of high value or importance, but you do not understand the process or claims made, don’t flounder. Take appropriate advice from a Surveyor or Lawyer experienced in this field.
If you have a construction dispute or would like to know more about your legal position, please do not hesitate to contact us to speak to a member of our Dispute Resolution Team.
This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.
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