18/11/2009

Adjudication – back to basics

Adjudication is one of the fastest ways of dealing with construction disputes and is a quick route to obtaining cash owed.

A dispute must have crystallised prior to the start of any adjudication, so first write to your opposition and set out what you are looking for. Next check your paperwork.  The right to adjudicate only arises if it relates to a construction contract which is “evidenced in writing.”  If your contract contains any adjudication provisions then these must be followed. For example, does the contract stipulate which organisation should nominate the adjudicator?  If you do not follow the correct contract procedure then the adjudicator’s appointment might be invalid.

If the contract contains no adjudication provisions then you still have a statutory right to adjudicate and you can approach any organisation (such as the RICS, RIBA or TECSA) to appoint an adjudicator.  If you want your adjudicator to possess any specific qualifications mention it in your adjudication application form.

Start the adjudication process by serving your Notice of Adjudication when you seek the appointment of an adjudicator.  Serve it on your opponent by fax (and by post) and keep confirmation of delivery in case service of the Notice become an issue later.  It should be carefully drafted as the adjudicator only has jurisdiction to decide the matters referred to him in the Notice.

Your Referral Notice, setting out your case in full, must be served within seven days of the Notice of Adjudication.  Prepare your Referral Notice at the same time as you prepare your Notice of Adjudication so you can then serve your Referral as soon as an adjudicator is appointed.

The adjudicator has 28 days from the Referral Notice to make his Decision so make sure that key personnel within your organisation are available during this period.  You will need to reply to the opposition’s response and answer any points raised by the adjudicator. Finally, check when the adjudicator is intending to make his Decision as a Decision which is published late will not be enforceable.