Author: Douglas Simpson
This article was published in Construction News on 5 April 2017 and is reproduced with kind permission.
The CIC’s free User’s Guide to Adjudication has just been republished and contains useful advice for anyone involved in adjudication.
The Construction Industry Council has republished its free ‘User’s Guide to Adjudication’, updated to 2017.
This replaces the 2003 version, which was popular with many in the construction industry – especially those involved in adjudication without any legal assistance.
The guide provides a practical introduction to adjudication under construction contracts in the UK and Northern Ireland – with particular focus on the requirements and effects of the Construction Act, as amended.
Beginning with the context of construction adjudication and the right to adjudicate, the guide leads users through the successive stages of the adjudication process – and ultimately to issues that might arise in the aftermath of an adjudicator’s decision.
For each stage, the guide sets out practical guidance for both the referring party (i.e. the party making the claim) and the responding party (i.e. the party defending the claim).
This includes explanations of the fundamentals of the procedure – for example, mandatory timescales and what documents must be served when – as well as guidance on issues that may not readily be resolved by reference to the Construction Act or the parties’ contract (for instance, what the parties’ submissions should cover).
The 2017 edition of the guide takes into account the amendments made to the Construction Act in 2009.
It also incorporates practice points and clarifications which reflect developments in the substantial body of case law connected with construction adjudication – for example, on the meaning of ‘dispute’.
Sections of interest
Sections which may be of particular interest include ‘Establishing the Right to Adjudicate’ and ‘Starting Adjudication’.
These parts of the guide address issues such as: what constitutes a ‘dispute’ which can be referred to adjudication; the points that the referring party must address in its notice of adjudication; and the procedure for appointing the adjudicator.
These are issues which referring parties commonly misunderstand or get wrong in the early stages of adjudication.
A failure by the referring party to address these issues properly can call into question the validity of the entire adjudication procedure, and may lead to a court declining to enforce the adjudicator’s decision.
These sections of the guide should help referring parties avoid some of the common pitfalls; and help responding parties understand what points to look out for, when served with a notice of adjudication.
The guide also contains a section on the matter of costs in adjudication (i.e. who is liable to pay the adjudicator’s fees, and the parties’ costs in the adjudication, after the adjudicator has made a decision).
The allocation and recovery of costs in adjudication is not like litigation, and disputes about what party must pay what costs in what circumstances have on several occasions made their way into the courts.
The usual position is that each party bears their own costs and expenses, and that the unsuccessful party in the proceedings will be ordered to pay the adjudicator’s fees. But this is not always the case.
Newcomers to adjudication would therefore benefit from reading this section of the guide, which should help everyone to understand the potential cost risks of adjudication.
While the guide is written so as to be an accessible general overview for newcomers to the adjudication process, it will also be a useful reference tool for those who have been involved in adjudication before.
The guide can be downloaded for free here.
Douglas Simpson, Associate, Fladgate LLP (firstname.lastname@example.org)