Adjudication is, as we’ve mentioned previously, one of the most popular ways to resolve a dispute. Since its introduction in 1997 as part of the then new Construction Act, adjudication has become the go-to method of construction dispute resolution in the UK and some say the only game in town. Over 2000 disputes are now regularly resolved through adjudication each year.
Obviously, nobody really wants a dispute on a project. But if you happen to be in an adjudication, what key things should you consider?
Yes, that old chestnut! We’ve said it before and it’s undoubtedly something we’ll say again. Before you even consider if you truly have a dispute, and whether you need to go to formal dispute resolution, have you got your records in order?
Almost inevitably, people don’t prepare adequate records, or keep the right kind of records. Perhaps take a look at our podcast on record keeping before you start any of this.
Let’s assume you have all the relevant records in place. Do you have an actual dispute? The relevant term here is ‘crystallisation’. Has your dispute crystallised? Is there a formal dispute – has a claim been advanced and subsequently rejected? This has been argued in several cases, including this 2021 case, helpfully summarised by Stevens and Bolton.
If your dispute has not crystallised then you may find that your adjudicator has no jurisdiction and will have to step down from the adjudication. This will mean you’ve fallen at the very first hurdle! If in doubt, take advice from a lawyer or specialist.
There are a few other procedural considerations to be certain of. Has your adjudicator been appointed correctly? What does your contract say about appointing an adjudicator? Are there any specific ‘nominating bodies’ such as RICS, RIBA, etc that need to be used? And above all, be sure to follow the procedures and timetables required by your contract, Construction Act and the Scheme for Construction Contracts.
Are you asserting the right thing? Be sure to phrase any claims carefully, avoiding ambiguity. Give the adjudicator help in reaching a conclusion. Rather than making broad statements or asking broad questions, be very specific in terms of amounts of money or periods of delay and what it is you are seeking to resolve. A more precise assertion, backed up by facts and figures will be more likely to succeed. Which brings us to:
If making a claim, be sure to evidence all aspects of it. Do not just make assertions without providing proof of their validity (remember, they who assert must prove). If an instruction leads to an additional cost, can you evidence the additional cost? Do you have delivery notes, invoices, and (again) records.
The same applies to time. Just because an element of a project was delayed for say a day, that does not necessarily mean an extra day of time is due. Do you have clear evidence that a delay led to the amount claimed?
To make a claim is relatively straightforward. To then substantiate that claim in clear and simple terms is a little more challenging. It takes time and effort, but that time and effort will be worthwhile if it means you end up succeeding at adjudication.
A colleague of ours recently observed that there are few problems in life that cannot be fixed with good communication. This is particularly true when you find yourself in a dispute scenario. It is easy to get bogged down with time consuming and frustrating arguments. Could better communication and clearer information help resolve an issue more quickly? If so, then why not try it. Few people (other than lawyers and consultants) have profited from arguing, so try to communicate with all parties openly and clearly. This should lead to better dispute resolution.
Conclusion
As always, good record keeping is key. Keep the right records in good order and ensure you have the right information to hand when you need it. Ensure you check your contract and do things at the prescribed times. Follow any legal processes carefully and if you’re in any doubt, take advice from a professional. Be very precise and accurate in any statements, claims and back them up with evidence. If we or any of our connections can help, get in touch today.
