Adjudication Claims

Welcome to Francis Wilks and Jones a firm of lawyers specialising in Construction Adjudication.

Construction Adjudication is a compulsory procedure for resolving disputes as an alternative form of Construction Dispute Resolution. Construction Adjudication allows the parties to resolve Construction Disputes without the need for parties to engage in a lengthy and often extremely costly court case. The Construction Adjudication Process was introduced in the UK in 1996 by the Housing Grants, Construction and Regeneration Act (“Construction Act”).

Construction Adjudication applies to parties under a Construction Contract. The parties cannot contract out of it. The Construction Adjudication Process is a 28-day procedure although in some cases the parties can agree an extension to this period.

Construction Adjudication is a complex area and we advise that any party seeking to commence the Construction Adjudication Process (or parties that have been served with such proceedings) should seek independent legal advice.

For out of hours enquiries ring one of our expert teams as follows:

Steve Killick  ( +44 (0) 7793 394 500 )

Christopher Ahearne  ( +44 (0) 7525 793 979 )

1. What is Adjudication in Construction Contracts?

Adjudication in Construction Contracts is a fast track process for parties to obtain a binding decision in a relatively short period. Construction Adjudication is a popular form of Construction Dispute Resolution with the obvious commercial benefit of it being more cost effective and faster than normal Court proceedings. The use of Adjudication in Construction disputes is designed to protect cashflow during the various construction stages and it was introduced by the Housing Grants, Construction and Regeneration Act 1996 (“the Adjudication Construction Act”). The Adjudication Construction Act gives parties operating under a Construction Contract the right to refer a dispute to Construction Adjudication.

We would advise that you speak with an expert Construction Lawyer for advice in relation to Construction Adjudication.
Read more

2. How to begin the Construction Adjudication process?

The Referring Party must serve on every party to the Construction Contract written notice of its intention to refer to the matter to Construction Adjudication. This Notice of Adjudication is an extremely important document which sets out the scope of the dispute which the Referring Party is seeking to resolve through the Construction Adjudication Process. There are various types of claims which are appropriate for the Construction Adjudication Process but most relate to disputes concerning Interim Payments, an extension of time for completion of works, any delay and disruption to works and finally a dispute over the final account.  

We would advise that you speak with an expert Construction Lawyer for advice in relation to the types of claims which are appropriate for Construction Adjudication.  
Read more
Back to the top of page

3. What must be included in the Notice of Adjudication?

The Notice of Adjudication must comply with section 28(2) of the Adjudication Construction Act. It is extremely important that the Referring Party comply with the requirements under the Adjudication Construction Act as a failure to do so may render the Construction Adjudication void.

The Notice of Adjudication should include the following:

  • I.    A brief description of the Construction Contract with the correct names and addresses of all parties;
  • II.    The Referring Party must also set out the nature of the dispute between the parties with specific details as to how it arose and what remedy the Referring Party is seeking through the Construction Adjudication Process. It is important to note that if the Notice of Adjudication does not include a matter which the Referring Party later seeks to raise with the Adjudicator then he/she will not have any jurisdiction to determine that particular issue through the Construction Adjudication Process. It is also important that the Adjudication Notice includes a statement setting out the Respondents rights and obligations under the Construction Adjudication Process.

We would advise that you speak with an expert Construction Lawyer for advice in relation to compliance with the Adjudication Construction Act so as to ensure that you do not fall foul of the strict rules governing the Construction Adjudication Process.
Read more
Back to the top of page

4. What is the next step after serving the Notice of Adjudication?

After the Referring Party, has served the Notice of Adjudication the next step in the Construction Adjudication Process is to appoint a Construction Adjudicator. the Referring Party must secure the appointment of the Construction Adjudicator within 7 days of serving the Notice of Adjudication. The parties can agree the identity of the Construction Adjudicator however, in the absence of an agreement, the Referring Party must make an application to an Adjudicator Nominating Body (“ANB”). The ANB are an important part of the Construction Adjudication Process.

If you would like to speak with an expert Construction Lawyer for advice in relation to how you appoint a Construction Adjudicator, or any other issue relating to the Construction Adjudication Process then please contact us.
Read more
Back to the top of page

5. How do you make an application to an adjudicator nominating body?

If the parties cannot agree the identity of the Construction Adjudicator, then the Referring Party must complete a form and pay the required fee before sending it to the ANB. On receipt of the same, the ANB must select a Construction Adjudicator and send notice of their decision to the Referring Party within 5 days of the date that they received the request.

However, in normal circumstances a Construction Adjudicator will be named within the Construction Contract or appointed by agreement between the parties within the Construction Adjudication Process.

If you would like to speak with an expert Construction Lawyer for advice in relation to how you appoint a Construction Adjudicator, then please contact us.
Read more
Back to the top of page

6. Can a party object to the Construction Adjudicator?

Any objection made by a party in relation to the appointment of a person as the Construction Adjudicator will not impact on the Construction Adjudicator’s appointment or any later decision reached.

The Construction Adjudicator’s authority is granted by the Construction Contract made between the parties. In any event, the Construction Adjudication Act sets out the minimum duties and powers of a Construction Adjudicator. The Construction Contract made between the parties may contain its own rules for Construction Adjudication, or may incorporate a set of Construction Adjudication rules published by an industry body.

If you would like to speak with an expert Construction Lawyer for advice in relation to how you appoint a Construction Adjudicator, then please contact us.
Read more
Back to the top of page

7. What is a Referral Notice?

A Referral Notice must be served within 7 days of the date of service of the Notice of Adjudication. This is an important document within the Construction Adjudication Process as it sets out both the legal and factual basis of the dispute which is being referred to Construction Adjudication.

The parties should be aware that the Construction Adjudicator’s jurisdiction will be limited to the legal and factual matters identified in the Notice of Adjudication. Any errors in the Notice of Adjudication cannot be rectified in the Referral Notice. Effectively the parties would have to begin the Construction Adjudication Process from the start. The Referral Notice must include the documentation in support of the Referring Party’s case. This may include any expert reports or witness evidence which the Referring Party seeks to rely upon within the Construction Adjudication.

If you would like to speak with an expert Construction Lawyer for advice in relation to how you complete a Referral Notice, then please contact us.
Read more
Back to the top of page

8. What do I do if I receive a Notice of Adjudication?

On receipt on a Notice of Adjudication the Responding Party should consider whether there is a Construction Contract in place which allows the matter to be referred to Construction Adjudication. For the matter to be referred to Construction Adjudication the dispute must have “Crystallised”.

The Responding party should consider whether the Referring Party has prior to commencing Construction Adjudication set out the claim it wishes to advance (in writing). The Referring Party should have set out the basis of the dispute and confirmed what is being sought through the Construction Adjudication Process. This is essential as the court will refuse to enforce a Construction Adjudicator’s decision where no dispute had in fact crystallised prior to the Construction Adjudication Process starting.

If you have received a Notice of Adjudication you must act quickly. If you would like to speak with an expert Construction Lawyer for advice on the steps to be undertaken during the Construction Adjudication Process, then please contact us.
Read more
Back to the top of page

9. What should the Responding Party do on receipt of the Referral Notice?

Within the Construction Adjudication Process the Responding Party should produce a Response to the Referral Notice. This is an important document within the Construction Adjudication Process as it sets out the Responding Party’s case in detail. The Response should deal with each issue raised by the Referring Party within the Referral Notice.

The Responding Party should refer to any documents relied upon by the Referring Party within the Construction Adjudication. if important documents have been omitted from the Referral Notice then only then should these be annexed to the Response. The Response must be served within 7 days of receipt of the Referral Notice although this can be extended to 14 days on agreement between the parties.

It is important that the Responding Party sets out its case in detail and within the time limits allowed under the Construction Adjudication Process. If you would like to speak with an expert Construction Lawyer for advice on how to respond to a Referral Notice, then please contact us.
Read more
Back to the top of page

10. Does the Referring Party have a right to Reply?

Within the Construction Adjudication Process there is no automatic right to Reply to the Referral Notice. The Referring Party may in some circumstances reply to the Response if they can persuade the Construction Adjudicator that its appropriate.

However, the Construction Adjudicator will often limit any response to specific issues. The reason for this is that the entire Construction Adjudication Process must be completed within 28 days. As such, the Construction Adjudicator must make a decision within 28 days of receipt of the Referral Notice. The evident time constraints within the Construction Adjudication Process allows the parties to utilise this form of Construction Dispute Resolution without the need for parties to engage in a lengthy and often extremely costly court case.

If you would like to speak with an expert Construction Lawyer for advice in relation any aspect of the Construction Adjudication Process then please contact us.
Read more
Back to the top of page

11. When does the Construction Adjudicator make their decision?

The Construction Adjudicator must plan within 28 days of service of the Referral Notice however, this can be extended by 14 days if the Referring Party agrees or it can be further extended if both parties can reach an agreement.

One obvious commercial benefit of Construction Adjudication is that it offers parties a fast track alternative form of Construction Dispute Resolution. As such, it is imperative that the parties obtain a binding decision in a relatively short period of time.

If you would like to speak with an expert Construction Lawyer for advice in relation any aspect of the Construction Adjudication Process, then please contact us.
Read more
Back to the top of page

12. Is a Construction Adjudicator’s Decision binding?

A Construction Adjudication decision is binding unless it is revised by Arbitration or Litigation. It is important to note that all parties must comply with the decision reached by the Construction Adjudicator and they cannot seek to dispute the same issues in further Construction Adjudication proceedings.

The fundamental objective of the Construction Adjudication Process is to ensure that it provides an alternative form of Construction Dispute Resolution so that parties do not have to enter into a more formal dispute resolution procedure.

If you would like to speak with an expert Construction Lawyer for advice in relation any aspect of the Construction Adjudication Process, then please contact us.
Read more
Back to the top of page

13. How long does Construction Adjudication take?

A Construction Adjudicator must reach a decision within 28 days of receipt of the Referral Notice unless the Referring Party agrees to extend the time or both parties agree an extension. The short 28-day deadline is seen as a major benefit of the Construction Adjudication Process.

As stated above, within 7 days of serving the Notice of Adjudication the Referring Party must serve the Referral Notice and any relevant documents in relation to the dispute. The documents must be served on the Construction Adjudicator and on the Responding Party. In normal circumstances the Responding Party will be expected to serve a Response to the Referral Notice within 7 days (although this can be extended to 14 days which is usually agreed between the parties). The evident time constraints within the Construction Adjudication Process allows the parties to utilise this form of Construction Dispute Resolution without the need for parties to engage in a lengthy and often extremely costly court case.

If you would like to speak with an expert Construction Lawyer for advice in relation any aspect of the Construction Adjudication Process, then please contact us.
Read more
Back to the top of page

14. How effective is adjudication in construction contracts?

Adjudication in Construction Disputes is a popular form of a Construction Dispute Resolution as it is an effective way of resolving disputes in a timely and cost effective manner. In most cases the parties accept the decision of the Construction Adjudicator which is binding in any event.

Due to the compulsory nature of Construction Adjudication it has become an important form of Construction Dispute Resolution and If a party does not comply with the Construction Adjudicator’s decision, a Court hearing can usually be obtained in a matter of days. Construction Adjudication is designed to be a simple process however, it is important that the parties comply with the correct procedure and carefully prepare their written case as this is critical to obtaining a successful result within the Construction Adjudication Process.

If you would like to speak with an expert Construction Lawyer for advice in relation any aspect of the Construction Adjudication Process, then please contact us.
Read more
Back to the top of page

15. What are the adjudicators fees and expenses?

The parties will be jointly and severally liable for the Construction Adjudicator’s fees. However, in circumstances where one Party does not pay then the other Party may be pursued for the whole amount. The parties are required to pay a reasonable amount for the work undertaken by the Construction Adjudicator and he himself can decide what is reasonable. If both parties (or one of the parties) dispute the sums charged by the Construction Adjudicator, then the matter may be referred to the Court for determination.

The parties may request that the Construction Adjudicator provide a breakdown of how he/she spent their time during the Construction Adjudication Process, with an explanation of what was done and when.

If you would like to speak with an expert Construction Lawyer for advice in relation to a Construction Adjudicator’s fees and expenses, then please contact us.
Read more
Back to the top of page

16. Can a party recover their costs of Construction Adjudication?

The default position is that a party cannot recover their costs of preparing and pursuing a Construction Adjudication. If both parties agree the Construction Adjudicator is able to decide that one party should bear the other party’s costs based on success.

However, in a recent case it was held that a party could recover their costs as a debt recovery under the Late Payment of Commercial Debts (Interest) Act 1998 however, it is anticipated that the Court will give clarification in relation to this point in due course.

If you would like to speak with an expert Construction Lawyer to obtain an estimate of the costs which will be incurred during the Construction Adjudication Process, then please contact us.
Read more
Back to the top of page

17. Can a party recover interest on the debt awarded by the Construction Adjudicator?

It is important that the Responding Party initially consider whether there is a Construction Contract in place which allows the matter to be referred to Construction Adjudication. For a Construction Adjudicator to award interest on the sums owed to the successful party there must be a right to claim it under the Construction Contract. Parties do not have an automatic right to recover interest although there will often be an express provision within the Construction Contract to allow such a recovery. The parties can also agree to include a claim for interest within the Construction Adjudication Process.

If a Construction Adjudicator is prepared to award interest he/she has the discretion to decide the rate, period and whether to award simple or compound interest.

The decision to award interest is an important aspect of the Construction Adjudication Process. If you would like to obtain advice from an expert Construction Lawyer in relation to this, then please contact us.
Read more
Back to the top of page

18. Can a party enforce a Construction Adjudicator’s decision?

Adjudication in Construction Contracts is a fast track process for parties to obtain a binding decision in a relatively short period. Construction Adjudication is a popular form of Construction Dispute Resolution. A successful party in a Construction Adjudication can apply to the Technology and Construction Court to enforce the decision made by the Construction Adjudicator. However, In most cases the parties accept the decision of the Construction Adjudicator which is binding in any event.

Due to the compulsory nature of Construction Adjudication it has become an important form of Construction Dispute Resolution and If a party does not comply with the Construction Adjudicator’s decision, a Court hearing can usually be obtained in a matter of days.

If you would like to speak with an expert Construction Lawyer to obtain an estimate of the costs which will be incurred when a party seeks to enforce a Construction Adjudication decision, then please contact us.
Read more
Back to the top of page

19. What is the procedure for seeking to enforce a decision made through the Construction Adjudication Process?

The relevant procedure depends on the nature of the Construction Adjudicator’s decision. If the decision relates to a monetary payment, then the successful party should issue a claim under Part 7 of the Civil Procedure Rules and at the same time issue an application for Summary Judgment under Civil Procedure Rule 24.

If the decision relates to a matter which does not involve a monetary payment, then the successful party should issue a claim under Part 8 of the Civil Procedure Rules seeking a declaration from the Court that the unsuccessful party has failed to comply with the decision reached by the Construction Adjudicator. Whilst in most cases the parties will accept the decision of the Construction Adjudicator, enforcement can be a very important part of the Construction Adjudication Process.

If you would like to speak with an expert Construction Lawyer for advice in relation any aspect of the Construction Adjudication Process, then please contact us.
Read more
Back to the top of page

20. What documents must be filed at Court to enforce the Construction Adjudicator’s decision?

A Construction Adjudication decision cannot be enforced in the same way as a judgment obtained through Court proceedings. However, there is a special procedure allowing parties to enforce a Construction Adjudication decision under Part 7 or 8 of the CPR.

It is extremely important that the Claimant includes all the relevant documentation when seeking to enforce a Construction Adjudication decision. In most circumstances if the correct documentation is filed the court will enforce a Construction Adjudication decision without assessing whether or not the decision is correct.
Read more
Back to the top of page

21. What if the Defendant ignores the Claim Form and Application Notice?

If the Defendant ignores the documents filed at Court by the party seeking to enforce a Construction Adjudication decision, then that party should apply for Judgment in Default of acknowledgment of service. In most cases the parties accept the decision of the Construction Adjudicator which is binding in any event.

Whilst the fundamental objective of the Construction Adjudication Process is to ensure that it provides an alternative form of Construction Dispute Resolution in circumstances where a party is required to enforce the Construction Adjudicator’s decision we can assist in filing the relevant documentation at the Technology and Construction Court.

If you would like to speak with an expert Construction Lawyer for advice in relation to enforcing a Construction Adjudication Decision, then then please contact us.
Read more
Back to the top of page