Adjudication
The Housing Grants, Construction and Regeneration Act 1996, provides at Section 108 that a party to a construction contract may take a dispute arising under the contract to adjudication at any time. As a result adjudication is now recognised as the primary dispute resolution procedure in the construction industry.
Adjudication as a dispute resolution procedure allows disputes to be swiftly determined within an initial 28-day period, with a result that can be rapidly enforced in the courts.
The parties in adjudication are termed the Referring and Responding parties and the Referring Party initiates the process by issuing the Notice of Adjudication. This will give a brief description of the dispute and the adjudicator will only be able to decide the matters set out in the Notice. If an adjudicator has not been previously agreed, the Referring Party will also request the Adjudicator Nominating Body (ANB) to nominate a suitable Adjudicator. Examples of an ANB are The Royal Institution of Chartered Surveyors and the Chartered Institute of Arbitrators.
The Notice of Adjudication creates a 7-day programme to appoint an adjudicator and for the Referring Party to serve the Referral Notice. If these processes are not completed within the 7-day programme, the Notice of Adjudication must be re-issued. The Referral Notice is the Referring Party's opportunity to set out in detail the assertions and evidence in support of their claim and as such is the key document. Service of the Referral Notice is the commencement of the 28-day process for the Adjudicator to deliver his decision. Whilst the Act is silent on the subject of subsequent submissions, it is usual for the Responding Party to serve a Response document and for the Referring Party to address any issues in a Reply to Response.
The 28-day period for the adjudicator to deliver his decision can be extended by either the agreement of the parties or by a period of 14 days with the agreement of the Referring Party.
Having obtained an adjudicator's decision, the winning party can enforce the decision by way of Summary Judgment in the Technology and Construction Court (the TCC). TCC judges do not just sit in London and are locally situated in Liverpool, Leeds, Birmingham and Salford (covering Greater Manchester).
Whilst the TCC has been robust in enforcing adjudicator's decisions, there is now a considerable body of case law as parties have argued discreet points in enforcement. Instances are whether the adjudicator had jurisdiction to decide the matter, an example being did the contract comply with the requirements of the Act, did he exceed his jurisdiction and decide a matter not covered in the notice or did he commit a breach of Natural Justice?. The strong approach of the TCC in enforcing adjudicator's decisions from the very first cases has resulted in Adjudication's position as the primary procedure for dispute resolution in the construction industry.
The Practice offers advice and support in the management of a dispute in adjudication proceedings which would include the preparation and presentation of the required documentation.
The Chartered Institute of Arbitrators provides a training course on the Law of Adjudication which Richard Newton has successfully undertaken and been awarded the Institute's "Advanced Certificate in Adjudication".
