In the latest of our series on tackling your own legal affairs, Ben Mullard of Berwin Leighton Paisner looks at what parties can do to control the cost of an adjudication
Either party in an adjudication is likely to face decisions that may affect the final cost. Here are the main ones:
The referring party
When should I commence my adjudication?
Adjudications can be won or lost on the quality of the written submissions and the evidence put before the adjudicator. It is therefore critical to make sure your strategy is developed and the documents that support your case are in order before you begin. Commencing an adjudication before you are properly prepared will result in an inefficient and ultimately more expensive process: the parties will need further time to put forward their cases and the adjudicator will need further information to decide the dispute. Keeping accurate records saves time and money, as it lets you collate the required information more easily.
Which issues should I adjudicate?
Most common construction issues can be adjudicated, however you must ensure that you clearly define what the argument is about, as the adjudicator may only determine the dispute that has been referred to them. If this does not properly reflect the actual dispute, the parties may need to commence a further adjudication to determine issues that could have been settled the first time round.
What evidence do I need?
Before beginning an adjudication, consider what evidence you need to prove your case. This may range from invoices to witness statements. Doing as much work as possible yourself will save costs, but bear in mind that in appropriate circumstances, employing a specialist, for example in relation to delay claims or complex quantum issues, may save time and money – and help you win.
Can I make further submissions?
Following initial submissions you may want to have another say or restate the important parts of your case. However, other than responding to points raised by your opponent, further submissions do not necessarily increase your chances of success and may result only in increased time and costs.
The responding party
If you are on the receiving end of an adjudication notice you may feel less in control, but there are still ways in which you can minimise your costs.
Do I have to participate in the adjudication?
When you receive a notice of adjudication, do not ignore it. If you choose not to participate in an adjudication, it is likely to proceed in your absence and the adjudicator will make a decision without your evidence. If the decision goes against you, you will still have to comply, unless the adjudicator lacks jurisdiction or is in breach of the rules of natural justice. You will also face unnecessary costs (see below), so doing nothing may be more costly in the long run.
Consider preparing your defence at the earliest possible stage – even before you receive formal notification of an adjudication, if it’s clear a claim is imminent. You should strike a balance between cutting future costs by preparing, and minimising unnecessary costs before the dispute is properly defined. Keeping accurate records will save time and money later.
What help will I need to defend the claim?
Once an adjudication has commenced, it is important to get your team together to ensure the availability of key individuals. This will allow you to develop your strategy and prepare submissions in an efficient way, avoiding duplication of effort. Consider who is best placed to carry out particular tasks.
What if I dispute the adjudicator’s jurisdiction?
If you consider that the adjudicator lacks jurisdiction, it is important to properly reserve your position at the outset, otherwise you may not be able to challenge enforcement later. This may mean being stuck with an unsatisfactory decision and having to commence costly formal proceedings to determine the issue. However, do not raise jurisdictional challenges that have little prospect of success. It is unlikely to be an efficient course of action, either during the adjudication or at the enforcement stage.
Do I have to pay up?
The short answer, in most cases, is yes. The courts take a robust approach to enforcing adjudicators’ decisions. Unless you have good grounds for challenging them, it may cost-effective to comply and avoid the further costs of enforcement.
This article was printed under the headline: ’Controlling adjudication costs: Low-fat legal process’
Ben Mullard is an associate in Berwin Leighton Paisner