Neil Armstrong, partner and head of the construction team at Myerson Solicitors, offers his top tips for defending construction adjudication proceedings
Construction adjudication is a fast process that can provide a swift and efficient resolution to a construction dispute.
The appointed adjudicator will have just 28 days to decide 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 opened against you. If you believe that adjudication proceedings will be filed against you or have received a Notice of Adjudication, you must be ready.
You often have a short window in which to respond, and any jurisdictional objections must be made as soon after the claim as possible.
There is often only a single opportunity to state your case, and there are complex procedural issues to be satisfied. Do not expect the adjudicator to make good, poorly presented defence or to overlook any procedural errors.
Here are five great tips for defending construction adjudication proceedings:
Tip 1: Make sure you understand the construction contract completely
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 timeline to be followed, as well as any notice requirements and how the adjudicator will be chosen.
This must be strictly followed, so check that the referring party has done so.
Tip 2: Gather your evidence and relevant documents for the adjudication proceedings
Check to see whether you are already aware of the difference or dispute that has been referred.
If you know that adjudication proceedings are about to be commenced, you should gather your evidence and documents. Once proceedings have started, you have a very limited amount of time to prepare your response.
Tip 3: Don’t ignore or delay your response to the Notice of Adjudication and Referral Notice
If you receive a Notice of Adjudication and then a Referral Notice, do not ignore them or delay in 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 should be prepared and served usually within 7 to 14 days. Any relevant evidence that may help your claim must be included. This includes any legal arguments or defences to the claim, as well as evidence, witness statements and supporting documentation.
The adjudicator will decide based solely on the information that is supplied to it and may not request further information.
So, you should make sure that your submissions are concise, explain your position clearly and can be easily read and cross-referenced. Do not delay taking professional legal advice when possible.
Tip 4: Make any potential challenges to the jurisdiction of the adjudicator at the earliest possible opportunity
Make any challenges to the jurisdiction of the adjudicator or arguments that there has been a breach of rules/procedures at the earliest possible opportunity. It is important to not wait for a decision on this to begin preparing your response.
The time to respond may be restricted while these concerns are being addressed.
Tip 5: Request more time for the decision of the adjudicator if needed
If you need more time, ask for it but don’t count on it being given. The 28-day period for the decision of the adjudicator can be extended by 14 days with the agreement of the referring party or beyond with the agreement of both parties.
Bonus tip for defending construction adjudication proceedings:
Avoid holidays and other commitments during adjudication
Ensure that you (and anybody else who may need to provide input) are not taking any holidays or having other commitments during the adjudication period.
The 28 days the adjudicator has to render a decision include weekends and holidays (except bank holidays), which are typically regarded as time periods in which a response is required. You never know when you might need to provide a response to a submission from the opposing party or answer a question from the adjudicator, so you must be available.
As the responding party, you will have a very limited amount of time to put your case forward, so it’s important to do so in the best way possible with the time available. 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 brought forward 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.
If you are facing adjudication proceedings or have received a Notice of Adjudication, you should seek legal counsel as soon as possible to ensure that your case is properly prepared. The difference between success and failure may be determined by whether you obtain professional legal assistance in advance if there is a possibility of adjudication procedures being commenced against you.
