Initiating Adjudication: Back to Basics
Part One: The Notice of Adjudication
The preparation of the Notice of Adjudication is arguably the most important step in the Adjudication process under the Construction Contracts Act (the Act). It is that document which initiates the process and, most importantly, sets the parameters of an adjudicator’s jurisdiction. In short, if the notice does not include a matter or matters subsequently raised in an adjudication claim, there is simply no jurisdiction for an adjudicator to determine those matters unless the parties agree.
Despite the importance of this document, we still see claimants coming unstuck when drafting their notice.
Errors in drafting can take many forms. By way of example:
where a claimant is intending to seek a decision on the merits but states in its notice of adjudication that it is seeking a determination on the basis of default liability. In such circumstances, an adjudicator would simply have no jurisdiction to consider the matter on the merits;
equally, if a claimant wishes to obtain a determination on the basis of default liability but does not state this in the notice of adjudication, an adjudicator could only address the claim on the merits under the contract;
where a claimant seeks payment of a specific sum of money without including the words or such other sum as the adjudicator may determine. In that case, the adjudicator may well reach a conclusion that a respondent is liable to pay a greater amount but he or she would only have jurisdiction to determine liability with respect to the amount claimed; or
where a claimant sets out two or three specific items (for instance, variation claims) in its notice of adjudication, but then includes two or three additional items in its claim submission, the adjudicator would have no jurisdiction to deal with those additional items.
Given the importance of this document and the repercussions for a claimant if it is not drafted properly, BDT encourages all parties who intend to initiate an adjudication claim (and their counsel) to review our step by step guide on our website and to use the BDT template notice of adjudication as a guide.
In Part Two of this three part series, we will look at service of the Notice of Adjudication. Further information on the process can also be found on our website.
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