Important COVID-19 Update

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These are certainly challenging times for us all.

We are committed to doing everything we can to prioritise the wellbeing of our people, those who use our services and their representatives and the communities we serve to help contain the spread of COVID-19. Following the Prime Minister’s announcement on Saturday, our people will begin working remotely from today, Monday 23 March.

Having well developed online dispute resolution options, it will in many ways be business as usual for us as we focus on providing a seamless service, regardless of where our Registry staff, adjudicators, arbitrators and mediators are working.

We know you are working through similar challenges to ours and that these are uncertain times for everyone. From all of us here we send our thoughts to you, your teams and families.

If you have any questions, please do not hesitate to get in touch. Please let us know if we can be of further assistance to you and we will keep you informed with any further updates.

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.