D.I.Y. Adjudication

It is not unusual for Parties to represent themselves in adjudication. There is nothing wrong with this. Indeed, it is probably the case that the drafters of the Housing Grants Construction and Regeneration Act 1996, or the Construction Act as it is commonly known, fully expected parties to represent themselves in a process which was developed specifically to serve the needs of contracting parties operating in the construction industry.
 

D.I.Y. Adjudication

 

It is not unusual for Parties to represent themselves in adjudication. There is nothing wrong with this. Indeed, it is probably the case that the drafters of the Housing Grants Construction and Regeneration Act 1996, or the Construction Act as it is commonly known, fully expected parties to represent themselves in a process which was developed specifically to serve the needs of contracting parties operating in the construction industry.

 
The problem is that nearly nine years have passed since the Construction Act came into force on 1 May 1998. A lot of water has flowed under the proverbial bridge since then. Hundreds of cases have been brought before the courts, both in England and Wales and in Scotland, and many would say that the adjudication process has now evolved into a process which is very sophisticated and now much closer to arbitration than Parliament ever intended.
 
Being an adjudicator is not an easy business. Making decisions in 28 days may sound straightforward but when an adjudicator is faced with competing submissions on complex issues of fact and law, skip-loads of evidence to both weigh and consider, long hours, stress and worry are the order of the day. Now throw in the prospect of a party representing itself that hasn’t got a clue what it is doing and it really is time to reach for that bottle of Jack Daniels!
 
Enough of my complaints, here are a few key Do’s and one very important Don’t to help those who insist on doing their own adjudications stand a chance of success in this ever increasingly complex process.
 

Do’s   

 
Ensure that your Notice of Adjudication sets down the questions that you want the Adjudicator to answer.  That doesn’t mean burying questions in your Referral Notice and hoping that the Adjudicator can find them. Even if he does discover them you have a problem because, unless the parties agree otherwise, the starting position is that an Adjudicator can only answer the questions that are included in the Notice of Adjudication.
 
Please make sure that your Referral Notice is concise, explains the dispute clearly, provides a copy of the contract and a legal argument as to why you consider you are entitled to the remedy claimed and includes only relevant evidence that you wish the Adjudicator to consider, paginated and referenced back to each head of claim.
 
Prepare your Referral Notice well in advance of issuing your Notice of Adjudication. In most cases you only have 7 days (from the service of your Notice of Adjudication) to apply for the appointment of an Adjudicator and serve your Referral Notice. It is not until you have finished drafting the Referral Notice that you will know for sure what questions you want the Adjudicator to address.
 
Make sure you have no holiday or other commitments in the adjudication period. Weekends and holidays (other than bank holidays) count as part of the 28 days in which the Adjudicator has to reach his decision. You never know when you may need to respond to a submission from the opposing party or answer a question from the Adjudicator. Sunning yourself in Benidorm during the adjudication  may make you feel better but it is not going do anything for your chances of success.
 
When you are ready, check the contract and follow carefully the procedure laid down for applying for the appointment of an adjudicator, including applying to the correct nominating body, if one is specified. If the contract says that the Notice of Adjudication is to be written in pink ink on yellow paper and served at the Responding Party’s head office in Kathmandu, so be it.  
 
Make sure that your opposing party is aware of your claim and that this has either been ignored or rejected by the other side. Otherwise you will hear “ambush” being screamed and your adjudication is likely to fall at the very first hurdle.  
 

Don’t    

 
Assume that an Adjudicator will help you make good a poorly presented case. This is just not going to happen.
 
And finally, one more Do…… 
 
If nothing else, please consider taking advice on the content of the Notice of Adjudication. This is both the point where the adjudication process starts and where, in my experience, it starts to go wrong. A little bit of advice at the right time can make the difference between success and failure.
 
Peter Vinden is a practising adjudicator, mediator, expert and conciliator. He is Joint managing Director and chairman of Vinden and he be contacted by email at pvinden@vinden.co.uk
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