The most commonly asked question in this regard is what is the process and what expertise is required.
Whilst is not essential to have a lawyer involved in the adjudication process, it is advisable. Legal input is particularly helpful for issues surrounding jurisdictional challenges which we will look at in more detail in the coming weeks. Legal input is also useful for disputes which involve contractual interpretation issues.
Whether an expert witness will be required will very much depend on the nature of the dispute. Experts are commonly used for complex extension of time claims, defects or quantum issues. If you appoint a solicitor they should guide you, based on the particular dispute, as to whether an expert is required to assist your claim or defence.
In order to commence an adjudication you must have a dispute. The adjudication process starts by crystallising the dispute. This involves the party referring the dispute, or their solicitor, sending a written notice to the other party setting out the issue in dispute. If the other party responds denying the issue or fails to respond after a suitable period (normally 2-3 weeks), a dispute will be deemed to have crystallised.
As this time a Notice of Intention to Refer can be served setting out the basis of the claim and the orders sought from the adjudicator. This is the document which sets the adjudicator's jurisdiction. The Notice of Adjudication should briefly set out:
- a description of the nature of the dispute and the parties involved;
- details of where and when the dispute arose;
- the nature of the remedy being sought; and
- names and addresses of the parties to the contract, including addresses where documents may be served.
Within 7 days of the Notice of Intention to Refer being served the adjudicator has to be appointed and the Referral Notice needs to be served. If either of these do not happen then the Notice of Intention to Refer falls and the process must be started again.
The Referral Notice is the document that sets out in detail the case of the party who is referring the dispute to adjudication. It should be accompanied by documentation in support of the claim together with expert reports, if any, and witness statements. A copy of the Referral Notice should be sent to the Respondent and the adjudicator at the same time.
The timetable for the Response, Reply and Rejoinder together with any requirement for a hearing will be set by the adjudicator within the 28 days (or longer if agreed) for the decision.
The adjudicator's decision must be issued within the period agreed by the parties and is final and interim binding, until the dispute is finally determined in arbitration or litigation.
Next week we will look at issues surrounding the appointment of the adjudicator. If you haven’t read our first two adjudication blogs, they can be found linked below.
Should you require any assistance with adjudication, we have a large and experienced construction team who regularly deal with adjudications and we would be happy to discuss the process with you.
