Adjudication is without doubt one of the fastest ways of dealing with construction disputes and is a quick route to obtaining money owed.
A dispute must have crystallised before the start of any adjudication, so the first thing to do is write to your opposition and set out what resolution you are looking for. Then check your paperwork. This is important because the right to adjudicate only arises if the dispute relates to a construction contract which is ‘evidenced in writing’.
You should also check if your contract contains any provisions for adjudication, as these must be followed. For example, does the contract stipulate which organisation should nominate the adjudicator? Make sure that you follow the correct contract procedure otherwise the adjudicator’s appointment might be invalid.
If the contract contains no adjudication provisions you still have a statutory right to adjudicate and you are free to approach any organisation – the RICS, RIBA or the Technology and Construction Solicitors Association, for example – to appoint an adjudicator. If you want your adjudicator to possess any specific qualifications, you should mention this in your adjudication application form.
The adjudication process begins when you serve a notice of adjudication and seek the appointment of an adjudicator. This should be served by fax and by post and confirmation of delivery should be kept in case service of the notice becomes an issue later.
The referral notice sets out your case in full and must be served within seven days of the notice of adjudication.
It is best to prepare this at the same time as you prepare the notice of adjudication so you can then serve your referral as soon as an adjudicator is appointed.
The adjudicator has 28 days from the date of the referral notice to make a decision, so it is important to ensure that key personnel within your organisation are available during this period. You will need to reply to the opposition’s response as well as answer any points raised by the adjudicator.
Finally, check when the adjudicator is intending to make their decision – if it is published late it will not be enforceable.
It is always best to avoid a dispute, but where it is unavoidable the adjudication process provides a clear framework for effective resolution. Whatever the case, it is essential that you remain focused on adhering to the strict timeframes to ensure the best chance of success.
Anjon Mallik is a partner in the construction department of Yorkshire law firm Gordons