Chapter 12. Adjudication

  1. Roger Knowles FRICS, FCIArb, FQSi, Barrister

Published Online: 30 JAN 2008

DOI: 10.1002/9780470759455.ch12

150 Contractual Problems and their Solutions

150 Contractual Problems and their Solutions

How to Cite

Knowles, R. (2005) Adjudication, in 150 Contractual Problems and their Solutions, Blackwell Publishing Ltd, Oxford, UK. doi: 10.1002/9780470759455.ch12

Publication History

  1. Published Online: 30 JAN 2008
  2. Published Print: 24 MAR 2005

ISBN Information

Print ISBN: 9781405120708

Online ISBN: 9780470759455

SEARCH

Keywords:

  • adjudication;
  • problems;
  • housing;
  • grants;
  • procedure

Summary

This chapter contains section titled:

  • Will an adjudicator's award be enforced by the courts using a summary procedure?

  • Will the court enforce part only of an adjudicator's award?

  • When can it be said that a dispute has arisen giving rise to an entitlement for the matter to be referred to adjudication?

  • To comply with the Construction Act and be subject to adjudication, the contract must be in writing or evidenced in writing. Would reference in meeting minutes to the nature of the work and the submission of fee accounts in relation to work undertaken by an engineer be regarded as a contract evidenced in writing?

  • Can a dispute concerning verbal amendments to a construction contract be referred to adjudication?

  • Where a mediator is appointed in relation to a dispute in connection with a construction contract and the dispute is not resolved but referred to adjudication, is the mediator barred from being appointed as adjudicator?

  • Will a court enforce an adjudicator's award which is clearly wrong?

  • If a dispute is the subject of ongoing litigation, can one of the parties, whilst the litigation is in progress, refer the matter to adjudication?

  • Can an adjudicator withhold a decision from the parties until his fees are paid?

  • If an adjudicator issues a decision late, can it be enforced?

  • The Construction Act states that ‘a party to a construction contract has the right to refer a dispute arising under the contract for adjudication’. As this suggests disputes can only be referred one at a time, does this mean that a dispute regarding the variations and also delays will have to be the subject of separate references?

  • Where a compromise agreement relating to a dispute on a construction contract is itself the subject of a dispute, can it be referred to adjudication?

  • A matter in dispute can only be referred to adjudication once. Where an adjudicator's decision has been received relating to a dispute over sums included in an interim certificate in respect of variations, can a dispute relating to the value of those variations when included in the final account be referred to adjudication?

  • Will a clause in a construction contract which states that all disputes are subject to the exclusive jurisdiction of the Austrian Courts and Austrian Law, or the courts and law of another jurisdiction outside the UK, result in disputes falling outside the UK courts' power to enforce an adjudicator's award?

  • Are the parties entitled to challenge an adjudicator's fees on the grounds that they are unreasonably high?

  • Does a draft adjudicator's decision constitute a final decision?

  • Does an adjudicator who communicates with one party without disclosing the details of the communications to the other party risk his decision being nullified by the courts on the grounds that his conduct amounted to bias?

  • Can an adjudicator employ the services of an expert to assist in making a decision?

  • Where an adjudicator seeks legal advice to assist him in reaching a decision, is he obliged to reveal the advice to the parties involved in the adjudication?

  • Have the courts laid down any general guidelines as to how the rules of natural justice should be applied in respect of adjudication?

  • Where an adjudicator issues a decision involving the payment of a sum of money by the winning party to the losing party, can the amount paid be reduced or eliminated in compliance with a clause in the contract?

  • Where an adjudicator's decision provides for a sum of money to be paid by the employer to the contractor, can the employer deduct from the sum awarded liquidated and ascertained damages due under the contract?

  • Can a party to a construction contract, who is reluctant to have a dispute referred to adjudication, successfully argue that the adjudicator's decision should not be enforced as, due to the very restricted nature of the adjudication process, it is contrary to the European Convention on Human Rights?

  • Can the party that is successful in adjudication recover its costs from the losing party?

  • Where a contractor includes in its subcontract terms a clause which states that if a dispute is referred to adjudication the subcontractor, even if successful, will be liable to pay the contractor's costs, is such a clause enforceable?