Another Day, Another Adjudication Notice - Are There Any Get Out Clauses?

• Published date: 04 October 2022
• Subject Matter: Real Estate and Construction, Construction & Planning
• Law Firm: Barton Legal
• Author: Mr Bill Barton

Have you either been issued with adjudication claims in the past or just received one in the post? Either way, here is your simple guide on how to stop a notice in its tracks!

1. Strike out based on general jurisdiction:

The Contract is not a 'Construction Contract' and therefore the Act is inapplicable;

The adjudication procedure in the Contract does not comply with Section 108 of the HGCRA 1996 (e.g. the Contract says the adjudicator must give their decision within 21 days of receiving the referral (not the requisite 28 days)); or

The adjudicator's appointment was invalid - This can include the fact the referring party sent the application for appointment of an adjudicator to a body which was not designated in the Contract.

For example, Lead Technical Services Ltd v CMS Medical Ltd [2007] EWCA Civ 316 (Lord Justice Moses) - The referring party (LTS) had applied to the Institute for Civil Engineers ('ICE') to appoint the adjudicator. The parties had entered into a Deed of Appointment which said that the Technology and Construction Solicitors' Association ('TeCSA') would be the body which appointed the adjudicator, not ICE.

The court held the adjudicator, who had been appointed by ICE and had decided on the matter, had no jurisdiction and therefore the adjudicator's decision was invalid and unenforceable.

2 - Strike our based on particular jurisdiction:

No dispute has 'crystallised' (the referring party did not notify the responding party of the dispute, prior to issuing an adjudication);

The dispute referred to the adjudicator is different to the 'crystallised dispute'; or

The dispute has already been decided upon in another adjudication: Vertase F.L.I. Limited v Squibb Group Limited [2012] EWHC 3194 (TCC): This related to two adjudications on the same issue.

The contract provisions made it clear that the adjudicator's decision would be final until it was finally decided upon by litigation or arbitration. Mr. Justice Edwards-Stuart held, at paragraph 44, that the adjudicator could not contradict the decision made in the first...