14. Adjudication

  1. Roger Knowles FRICS, FCIArb, FQSi, Barrister

Published Online: 14 FEB 2012

DOI: 10.1002/9781118257050.ch14

200 Contractual Problems and their Solutions, Third Edition

200 Contractual Problems and their Solutions, Third Edition

How to Cite

Knowles, R. (2012) Adjudication, in 200 Contractual Problems and their Solutions, Third Edition, Wiley-Blackwell, Oxford, UK. doi: 10.1002/9781118257050.ch14

Publication History

  1. Published Online: 14 FEB 2012
  2. Published Print: 15 FEB 2012

ISBN Information

Print ISBN: 9780470658314

Online ISBN: 9781118257050

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Keywords:

  • adjudication;
  • adjudicator's decision, and the courts;
  • decision of adjudicator, under the Act;
  • courts, enforcing adjudicator's award;
  • Court of Appeal, seven propositions;
  • adjudicator's award and error types;
  • contracts, decisions within 28 days;
  • litigation, the losing party paying up

Summary

This chapter contains sections titled:

  • Will an adjudicator's decision be enforced by the courts?

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

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

  • To comply with the Construction Act 1996 and be subject to adjudication, the contract must be ‘in writing or evidenced in writing’. What is meant by ‘in writing or evidenced in writing’? Has this been amended by the Local Democracy, Economic Development and Construction Act 2009?

  • Can a dispute concerning oral 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 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 communication 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, because of 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?

  • It has been argued that adjudication in accordance with the Construction Act 1996, because of the short time scale involved, should not be used in complex cases, as it is likely to result in a breach of natural justice; is this correct?

  • Where one party claims that the adjudicator has no jurisdiction, but, whilst maintaining this position, continues to take part in the proceedings, can that party avoid paying the adjudicator's fees on the grounds that he claimed the adjudicator had no jurisdiction?

  • What happens if the adjudication provisions as set out in the contract are at variance with the provisions of the Housing Grants, Regeneration and Construction Act 1996?

  • Is it possible for a Referring Party to restrict or exclude part of the defence and are the parties entitled to introduce evidence which was not disclosed before the adjudication commenced?

  • Can a losing party refuse to comply with an adjudicator's decision on the grounds that the Referral Notice was served late?

  • Section 105(1) of the Housing Grants, Construction and Regeneration Act 1996 defines what are construction operations and provided for by the Act, whereas Section 105(2) defines what operations are not construction operations and excluded from the Act. Does the Act apply if on a project some of the operations are covered by the Act, whilst others are not?