The determination

The adjudicator’s duties and powers in relation to principles that must be followed and procedures that may be adopted determining a dispute are set out in sections 41 & 42 of the Act. There is of course an overarching obligation to comply with the principles of natural justice, but there can be no issue of breach in relation to the adjudication process itself insofar as it is prescribed in the Act or otherwise agreed as between the parties.

Whilst the adjudicator has the power to request further submissions from the parties and to convene a conference of the parties (note that it is specifically not referred to as a ‘hearing’), no party should ever presume (absent any agreement to the contrary) that it will have the opportunity to address the adjudicator further in relation to the disputed matters beyond what is included in the adjudication claim and the written response.

If a conference is convened by the Adjudicator, it will be for the express purpose of allowing the adjudicator to clarify matters that may have arisen out of the claim and the response; there is no ability to administer an oath or affirmation and there will be no prospect of “cross-examination” by parties or their representatives. It will be for the adjudicator to put questions of clarification to the parties, although in doing so, obviously the principles of fairness and natural justice must be applied and upheld.

The parties may be represented at adjudication proceedings/conferences subject to the adjudicator’s power to direct the number of representatives present at a conference to allow for the efficient conduct of proceedings (s67).

In determining a dispute, an adjudicator must only take into account the matters referred to in section 45(a) to (f) of the Act (See para [15] above), and may take into account any matters that the adjudicator reasonably considers relevant (s45(g)).

The earliest that an adjudicator may make a determination is the end of the period within which the respondent may serve a written response to an adjudication claim referred to in section 37(1), namely 5 working days after receipt of the adjudication claim, or the further time allowed by the adjudicator or agreed by the parties. The adjudicator must not have regard to a response unless it was served on the adjudicator within that period (s46(1)).

An adjudicator must determine a dispute within 20 working days after the time for service of the response, although this time may be extended by the adjudicator to 30 days or such other time as the parties may agree (s46(2)).

The adjudicator’s determination must be in writing and contain the reasons for the determination (unless the parties agree in writing that reasons may be dispensed with) in the prescribed form, namely Form 3, Sch.1 to the Regulations (s47(1)).

Within 2 working days after the date on which a copy of the adjudicator’s determination is given to the parties, an adjudicator may, on his or her own initiative, correct in the determination any errors in computation or any clerical or typographical errors of a similar nature (s47(3)). This type of provision has long been referred to as the ‘slip rule’ in arbitration proceedings and it should be clearly understood that the adjudicator’s discretion under this provision is limited and well circumscribed and does not extend to changing or correcting determinations in relation to the substantive matters that are the subject of the adjudication.

Under section 59 of the Act, payment of any amount determined by the adjudicator to be paid to a party must be paid within the same period, i.e. 2 working days after the date on which a copy of the adjudicator’s determination is given to the parties, unless the adjudicator determines otherwise.

In a monetary claim, an adjudicator must determine whether or not any of the parties are liable, or will be liable if certain conditions are met, to make a payment under the contract (s48(1)(a)) and any questions in dispute about the rights and obligations of the parties under that contract (s48(1)(b)). If an adjudicator determines that a party to the adjudication is liable, or will be liable if certain conditions are met, to make payment, the adjudicator must also determine the amount conditionally payable and the date upon which that amount becomes payable and may determine that the liability to make payment is dependent on certain conditions being met (s48(3)).

In non-monetary claims an adjudicator must determine the rights and obligations of the parties under the contract.

An Authorised Nominating Authority
under section 65 of the Construction Contracts Act 2002