Timelines In Adjudication And Adjudicator's Powers

• Published date: 09 October 2023
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Arbitration & Dispute Resolution, Construction & Planning
• Law Firm: Barton Legal
• Author: Mr Bill Barton

What is an Adjudication?

Adjudication is a form of legal proceedings developed as a quicker and less formal means of resolving construction disputes, having been described as the process of 'Pay now, argue later' (a phrase used in various cases - Homer Burgess Ltd v Chirex (Annan) Ltd [1999 ScotCS 264, RJT Consulting Engineers Ltd. v DM Engineering (Northern Ireland) Ltd. [2002] EWCA Civ 270, Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd [2003] EWCA Civ 1750).

Adjudication is intended as a way of replacing the court process on matters that fall within the remit of the adjudicator, as outlined by Mr Justice Fraser in Dacy Building Services Limited v IDM Properties LLP [2018] EWHC 178 (TCC) at 86: "A trial, with contested evidence given orally, will only in my judgment very rarely be justified, even on the question of whether there was a contract at all. It must be remembered that adjudication decisions simply deal with the positions of the parties on an interim basis."

This is a short process only lasting between 28-42 days from the date of the referral notice being issued, typically being decided on by a quantity surveyor, a solicitor or a barrister. Upon commencement, each party is permitted to make a series of submissions throughout the adjudication.

Costs are not recoverable in Adjudication

It is important to note that a key difference between arbitration and adjudication is that the successful party cannot recover their costs from the unsuccessful party. Whilst up to the Adjudicator's discretion, typically the usual rule follows that the unsuccessful party pays the Adjudicator's fees.

The Adjudication Process (timeline)

1. Claim under the Construction Contract;
2. Dispute has 'Crystallised' (i.e., within the knowledge of the parties);
3. The Notice of Adjudication is served by the referring party on the responding party;
4. Issuing and service of the Adjudicator appointment form;
5. The Responding party can challenge the Adjudicator's jurisdiction;
6. Appointment of the Adjudicator and service of the Referral Notice;
7. Response from the Responding Party;
8. Reply by the Referring Party;
9. Further submissions (e.g. the Rejoinder, Surrejoinder);
10. The Adjudicator investigates the claim and may ask for further information from both parties;
11. The Adjudicator publishes their decision; and
12. Enforcement proceedings are commenced (if the unsuccessful party does not comply with the decision), an agreement is entered into or the Adjudicator's decision is finally binding.

What can an...