Responding to adjudication – are you ready?

7 August 2017

Mark James

It’s Friday afternoon, at the end of what has been a busy week already. Then you receive this:

Dear Sirs,

Further to our client’s Notice of Adjudication dated [………], we now enclose our client’s Referral Notice, comprising three lever arch files.

An hour later, the adjudicator directs you to serve your response within seven days. 

This might be the only opportunity you get in the adjudication to set out your case. Here are some tips on what to think about when preparing your response.

Content of response

Think about whether you need expert evidence to support your case, for example a QS valuation, or a structural engineer or building surveyor’s report on defects. Remember, you only have seven days, so instruct the expert right away and give them a deadline to reply by.

If the case is fact sensitive, obtain signed witness statements from any relevant witnesses, setting out factual evidence to support submissions. A chronology of factual events is often useful.  

Prepare a submission stating your case. In this document, tell the adjudicator as persuasively, concisely and fully as possible, what your case is in response to the claim, both factually and legally. It is prudent to respond to each paragraph number of the referral.   

If appropriate (which it normally is), expressly reserve the right to argue that the adjudicator lacks jurisdiction and say why at the start of your submission.

Refer to what your witnesses say in your response.

Use an index or contents page of what your response will contain, separated by tabs.

Refer to and enclose important contractual provisions or project documents, such as drawings, meeting minutes, notices, correspondence and calculations.  Usually, you would use a paginated bundle.

Cross-refer to any relevant documents in your response and explain how they support you.   Make reference to any legal authorities or case law which supports your case.

Set out details of any cross-claims or counterclaims, but be careful not to raise cross-claims or counterclaims in the adjudication that could invalidate the adjudicator’s decision.

For example, if the claims fall outside the scope of the dispute referred to the adjudicator, these could be said to be part of a separate and unconnected dispute.

There could also be a breach of the rules of natural justice if the referring party has insufficient opportunity to consider these claims.

Adjudication is binding, unless it is overturned

Remember that any documents used in your response could be referred to later if either party pursues litigation or arbitration seeking to overturn the adjudicator’s decision.

When deciding what to use, think about whether something could be questioned now, which may cast doubt on the credibility of any witness or expert evidence further down the line. It might sound obvious, but only include things which will help, not hinder, your case.  

Start your own adjudication?

Depending on the circumstances, you may need to start your own adjudication. For example, where no pay less notice has been served, but you do not agree with the payment application, you might wish to start your own adjudication to determine the proper value of work done. 

If it is started quickly enough, the decision in one adjudication can often coincide with the other by a matter of days and before any hearing of subsequent enforcement proceedings.

Note, though, that a party cannot remedy a failure to serve a pay less notice by arguing a cross-claim in the adjudication (see Letchworth Roofing Co v Sterling Building Co [2009] EWHC 1119 (TCC)). You will usually have to start your own adjudication, as above.

Need more time?

Timescales are tight in adjudication because the legislation requires a decision (unless extended) within 28 days. You should start to prepare your response and supporting evidence straight away.   However, if you need more time, ask for it early.

The parties can agree to extend this deadline or the adjudicator normally has discretion to extend this. The adjudicator also has discretion to consider any submission served late and should normally address this, or it could invalidate the adjudicator’s decision.

By Mark James, a partner and construction lawyer at Coffin Mew

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