1. Adjudication: The Process
clear pr acti cal advi ce
Stephen McLellan
January 2013

2. Stephen McLellan
Solicitor
Construction and Engineering
Watson Burton LLP
Telephone: 0845 901 0936
Email: stephen.mclellan@watsonburton.com

3. Adjudication
1. Background to adjudication
2. The process
2.1 starting the process
2.2 submissions
2.3 decision / enforcement
3. The future of adjudication

4. 1 Background to Adjudication
What is adjudication?
• 3rd party adjudicator
• 28 day process (up to 42 days)
• Interim decision
•
Costs not recoverable

5. 1 Background to Adjudication
- Housing Grants, Construction and Regeneration Act 1996
“The intention of Parliament in enacting the Act was plain. It was to
introduce a speedy mechanism for settling disputes in construction
contracts on a provisional interim basis, and requiring the decision
of adjudicators to be enforced pending the final determination of
disputes by arbitration, litigation or agreement….”

6. 1
Background to Adjudication
“…The timetable for adjudications is very tight…many would say
unreasonably tight, and likely to result in injustice. Parliament must
be taken to have been aware of this. So far as procedure is
concerned, the adjudicator is given a fairly free hand”.
(Macob Civil Engineering Ltd -v- Morrison Construction Ltd [1999])

7. 1 Background to Adjudication
-
Local Democracy, Economic Development and Construction Act
2009
• came into force October 2011
• requirement for construction contracts to be “in writing”
removed
• parties cannot agree who will pay the costs of the process
before the Notice of Adjudication is issued

8. 2
The Process
- When can you use adjudication?
•
•
there must be a dispute
qualifying contract – the following are excluded:
– sale of goods contracts
– extraction of oil, gas, materials
– work associated with nuclear processing, power generation,
water or effluent treatment, production and processing of
chemicals etc.
– contracts with residential occupants

9. 2
2.1
The Process
Starting the process
• the Notice of Adjudication
– identifies intention to adjudicate
– defines the adjudicator’s jurisdiction
• can be deliberately narrow or wide

10. 2
2.1
The Process
Starting the process
• appointment of an adjudicator
– named in contract?
– agreed between parties
– nomination
7 days after Notice of Adjudication

11. 2
2.2
The Process
Submissions
- Referral Notice
• re-statement of the dispute
• complete explanation of the claim:
- identify the parties
- contract documents and relevant terms
- what obligations have been breached?
• relevant supporting documentation:
- witness statements?

12. 2
2.2
The Process
Submissions
- Referral Notice (continued…)
• points of law
• request for a meeting or hearing?

13. 2
2.2
The Process
Submissions
- Response
• be prepared
• understand the extent of the dispute
- is clarification required?
• are there any jurisdictional issues?
• extension of time?
7 days from the Referral Notice

14. 2
2.2
The Process
Submissions
- written questions
- meeting
- further submissions

15. 2
2.3
The Process
Decision / enforcement
- Decision
• reasons to be provided?
• 28 to 42 days from referral
• effect of decision
• payment
• other, e.g. construing contract
• temporarily binding

16. 2
2.3
The Process
Decision / enforcement
- Enforcement
• binding
- must comply, cannot appeal
- if a party disagrees with a decision, can challenge by
litigation / arbitration
• courts will enforce the decision, in the first instance
• shortened process – summary judgement

17. 3
The Future for Adjudication
• verbal contracts
– disputes over oral terms?
• costs
– “Tolent” clauses banned

18. Further information
- Useful websites
www.rics.org/drs
www.adjudication.org
www.adjudication.co.uk
www.watsonburton.com

19. Adjudication: The Process
clear pr acti cal advi ce
Stephen McLellan
January 2013