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Once it is clear that there is a dispute or difference between the parties to a construction contract, either party can choose to commence an adjudication under the Construction Contracts Act 2002. It is important to remember that adjudication is a unique form of dispute resolution specifically for the resolution of building and construction disputes. It is not a cumbersome, lawyer driven process but a quick process aimed at getting the key facts before an adjudicator so that a determination can be made to resolve the dispute and encourage cashflow. In summary, the process of adjudication can be broken down into 6 keys steps: Step 1 - Claimant serves a Notice of Adjudication: This is an important document as it defines the scope of the dispute. Building Disputes Tribunal provides sample forms for use as a Notice of Adjudication. Step 2 - Selection of the Adjudicator: Parties are best served to apply to Building Disputes Tribunal for the appointment of an adjudicator by completing our online form. Step 3 - Filing of Adjudication Claim: The adjudication claim is similar to a statement of claim for a court proceeding. It must contain enough information to enable to adjudicator to understand the dispute and the relief or remedy sought by the claimant. Step 4 - Respondent serves a written response: The response is similar to a statement of defence and is intended to set out the defendant/respondent side of the story for the adjudicator. Step 5 - The Adjudicator determines the dispute: The adjudicator will review the claim and response and the documents and witness statements provided in support by the parties and then reach his or her decision. There is no requirement for a hearing to be held or a site visit so the claim and response need to include all information required for the adjudicator to reach his or her determination. Step 6 - Payment or enforcement of the determination: The adjudicator's decision or determination is binding and any requirement for a party to make payment must be complied with within 2 working days or the successful party can pass the determination to the Courts for enforcement Each of the above steps has a time limit associated with it and it is compliance with these time limits that keeps the process moving so that a determination is given within 6 weeks or less of the commencement of the process. It is critical that the deadlines are met as failure to do so can have severe consequences and result in a claim or response not being considered by an adjudicator. Too often parties or their advisers overlook the strict time frames associated with adjudication and try to transform the adjudication process into a more traditional form of disputes resolution such as arbitration. This is contrary to the intent of the Act and parties trying to rely on traditional tactics will have to reconsider when faced with an adjudication. For example, a respondent only has 5 working days to file its response on receipt of the claim. There is no obligation on an adjudicator to give an extension of time to filing that response nor is there any ability on a party to apply for discovery, interlocutories and so on. The claim as filed is the document that must be responded to within time. Failure to do this can result in an adverse conclusion as the adjudicator is not required to consider anything submitted out of the statutory time limits. To view a diagram summarising the Adjudication Process, click here |
