Construction Contracts Act 2013 (The Act). To What Extent Will The Adjudicator’s Decision Be Open To Challenge.

The Act has not been commenced yet. The Act provides for a payment claim notice to be sent by the contractor, and a response by the employer, all within a short time frame. It allows for suspension of works where money is not paid.

At any stage, any dispute relating to payment arising under the construction contract can be referred to adjudication. The parties will have 5 days to appoint an adjudicator, failing which, same will be appointed from a panel. The referrer than has 7 days to make a referral to the adjudicator appointed. The adjudicator will decide the matter within 28 days of referral, unless the parties consent to an extension.

S. 6 provides inter alia:-

"10.The decision of the adjudicator is final until the payment dispute if finally settled by the parties or a different decision is reached on the reference of the payment dispute to arbitration or in proceedings initiated in a court in relation to the adjudicator's decision...

12. The decision of the adjudicator, if binding, shall, unless otherwise agreed by the parties, be treated as binding on them for all purposes and may accordingly be relied on by any of them, by way of defence, set-off or otherwise, in any legal proceedings."

The logic of this section is that the adjudicator will make a quick, efficient decision on payment. If the employer is unhappy with that decision they can sue in arbitration for a return of this money or part of the money or can challenge the adjudicator's decision by judicial review. My reading of the italicised part of s.6.10 combined with s.6.12 is that court proceedings would only overcome the adjudicator's decision if they are court proceedings in relation to the arbitrator's decision and not other court proceedings where the payment is in issue, but this will be a matter for interpretation of these sections by the courts. Certainly it would seem safer to challenge by arbitration. Certainly the s.108.3 of the Housing Grants Construction and Regeneration Act 1996 in the UK provides "the determination.. is binding until the dispute is finally determined by legal proceedings, by arbitration...or by agreement" and it more broadly worded in this respect.

To what extent will judicial review be successful

The UK have similar legislation in the 1996 Act as above. The English courts have shown a great deference to decisions of adjudicators. In Carillon Construction ltd. v. Devonport Royal Dockyard Ltd. 2006 BLR 15 the court held that a challenge will...