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Issues to consider before commencing an adjudication—checklist

Issues to consider before commencing an adjudication—checklist This Checklist highlights issues that commonly require consideration prior to a party referring a dispute to adjudication. It includes links through to in-depth guidance on the various issues and notes the relevant provisions of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) where applicable. Legal matters It is necessary to check that there is a legal right to refer a dispute to adjudication, including whether the dispute has crystallised and comes within the scope of permitted disputes. • Entitlement to refer a dispute to adjudication The referring party must have a legal right to refer a dispute to adjudication. This can be either a statutory or a contractual right, or an ad hoc agreement between the parties to adjudicate. Therefore, consider: ◦ is there a statutory right—does the parties’ contract fall within the definition of ‘construction contract’ under HGCRA 1996, s 104 and is not otherwise excluded from its ambit? See Practice Note: What is a construction contract under the HGCRA...

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Adjudication—the Referral Notice

This Practice Note explains what a Referral Notice (sometimes referred to simply as a ‘Referral’) is and sets out what it should contain. It also provides practical tips for drafting an effective Referral Notice, and considers when the Referral Notice must be served and the consequences of failing to meet the deadline for service.For a Precedent Referral Notice, see: Referral Notice for an adjudication.What is the Referral Notice?Once a Notice of Adjudication has been given, and a person has been appointed to act as an adjudicator, the dispute must be formally referred to the adjudicator. The Referral Notice is the referral of the dispute in writing to the adjudicator, and its purpose is to set out clearly and concisely the referring party’s case. It is, effectively, the referring party’s pleadings, evidence and submissions all rolled into one.The referring party should bear in mind that the Referral Notice is intended to be the whole of its case, and not just the opening shot. There is no guarantee that it will be...

Adjudication timescales

This Practice Note considers the timescales for an adjudication under the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) and the Scheme for Construction Contracts. In particular, it looks at adherence to the timetable, how time periods are calculated and whether tight timescales can give rise to a breach of natural justice.The HGCRA 1996 provides specific timescales for the service of the Referral Notice and the adjudicator’s decision, but otherwise does not prescribe time periods for other steps in an adjudication. However, the power to set the timetable is within the adjudicator’s discretion, which will include setting a deadline for the Response and any other steps it considers necessary—see Practice Note: The adjudicator's powers, directions and duties.Adherence to the timetableThe overriding principle of the adjudication process is that speed is given precedence over accuracy—what matters most is a quick decision, not necessarily a wholly accurate one. This principle is based on the recognition that cash flow is paramount during a construction project.The courts have consistently stressed that if the mandatory...

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Letter challenging jurisdiction of adjudicator

Letter challenging jurisdiction of adjudicator [Address/headed paper of responding party] [Date] [Address of adjudicator] Dear [insert name of adjudicator] In the matter of an adjudication between [referring party] v [responding party] Lack of jurisdiction as an adjudicator We have received: 1 The Notice of Adjudication dated [date] 2 [The Referral Notice dated [date] served on [date] by [referring party]] 3 Your letter of [date] purporting to accept the appointment as adjudicator. We respectfully consider that you do not have jurisdiction to act as an adjudicator in this matter, or to allow an adjudication to begin or to continue. General reservation of rights We reserve our right to raise any objections to

Advice to clients—what is adjudication?

Advice to clients—what is adjudication? What is adjudication? You have asked us to provide you with a brief description of what adjudication is and how the adjudication process typically runs, in light of [[your proposal to enter into a construction contract with] [insert name of the counterparty] OR [in anticipation of adjudication proceedings between] you and [insert name of the counterparty]]. Adjudication is a procedure designed to enable parties to resolve disputes relatively quickly and inexpensively. Under the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996), parties to construction contracts have the right to commence adjudication at any time. The parties refer their dispute to the adjudicator, who is an impartial decision-maker. The adjudicator is usually a construction industry professional (eg a quantity surveyor or engineer), or a lawyer with construction experience. They will consider arguments from both parties, and may also use their own initiative and experience, before making a decision on how the dispute should be resolved. The party that refers its claim to adjudication is...

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Where a sub-contractor has a number of unpaid invoices, can it commence a single adjudication in respect of all of them or would this constitute multiple disputes?

Where a sub-contractor has a number of unpaid invoices, can it commence a single adjudication in respect of all of them or would this constitute multiple disputes? This Q&A assumes that there is a dispute as to valuation of works carried out under a single unified construction contract between a contractor (C) and its sub-contractor (S) which is subject to the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) but does not include bespoke provisions as to referral to adjudication, and thus, Part 1 of the Scheme for Construction Contracts (the Scheme), SI 1998/649 applies. A party to a construction contract has a right to refer ‘a dispute arising under the contract’ to adjudication at any time under HGCRA 1996, s 108(1). It is very important for a party considering referring a matter to adjudication to consider closely whether an adjudicator will have jurisdiction to resolve the relevant factual dispute (or disputes) within a single adjudication, or whether several adjudications are necessary. See Practice Note:...

Is it possible for a referring party to submit arguments and documents in its adjudication reply which were not included in its referral?

Is it possible for a referring party to submit arguments and documents in its adjudication reply which were not included in its referral? Every dispute referred to an adjudicator is defined by reference to the notice of adjudication—a referring party is not entitled to increase the scope of the dispute via arguments and documents in its reply without agreement between the parties and the adjudicator. See, for example, KNS Industrial Services (Birmingham) Ltd v Sindall Ltd and Mecright v. TA Morris Developments Limited 26th June 2001 (not reported by UUÂãÁÄÖ±²¥Â®). However, a referring party can respond in its reply to matters raised in the response and provide documents relevant to this. Therefore, a key distinction to be made is whether the documents and arguments should have been raised at the outset, or whether they are just an understandable response to matters raised in the response. If the responding party is not given sufficient time to respond to the reply, there may also, depending on the...

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Adjudicator’s rejection of disclosure request did not demonstrate bias (Essential Living v Conneely Facades)

Construction analysis: The Technology and Construction Court (TCC) found that an adjudicator had been entitled to take the view that the defendant’s request for disclosure was ‘fanciful’, and that his approach to the disclosure issue did not indicate that he had wrongly predetermined the dispute against the defendant. The court therefore rejected the defendant’s argument that the adjudicator had breached the rules of natural justice.

Construction weekly highlights—28 March 2024

This week's edition of Construction weekly highlights includes the government’s response to its consultation on the draft Procurement Act 2023 (PA 2023) regulations and publication of guidance by the Cabinet Office on those regulations, a case from the Outer House, Court of Session (CSOH) in which it was held that an adjudicator had erred in allowing new evidence to be presented on a matter resolved in a previous adjudication (Engenda v Petroineos), a case in which the Technology and Construction Court (TCC) considered a claim for defects in a residential property and issues arising under the Defective Premises Act 1972 (DPA 1972) (Vainker v Marbank), and a consultation launched by the Department for Levelling Up, Housing and Communities (DLUHC) on the qualifying criteria for joint leasehold owners in relation to the Building Safety Act 2022 (BSA 2022).