Another day, another Adjudication notice – are there any get out clauses?

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Have you either been issued with adjudication claims in the past or just received one in the post? Either way, here is your simple guide on how to stop a notice in its tracks!


1. Strike out based on general jurisdiction:

The Contract is not a ‘Construction Contract’ and therefore the Act is inapplicable;

The adjudication procedure in the Contract does not comply with Section 108 of the HGCRA 1996 (e.g. the Contract says the adjudicator must give their decision within 21 days of receiving the referral (not the requisite 28 days)); or

The adjudicator’s appointment was invalid – This can include the fact the referring party sent the application for appointment of an adjudicator to a body which was not designated in the Contract.

For example, Lead Technical Services Ltd v CMS Medical Ltd [2007] EWCA Civ 316 (Lord Justice Moses) – The referring party (LTS) had applied to the Institute for Civil Engineers (‘ICE’) to appoint the adjudicator. The parties had entered into a Deed of Appointment which said that the Technology and Construction Solicitors’ Association (‘TeCSA’) would be the body which appointed the adjudicator, not ICE.

The court held the adjudicator, who had been appointed by ICE and had decided on the matter, had no jurisdiction and therefore the adjudicator’s decision was invalid and unenforceable.


2 – Strike our based on particular jurisdiction:

No dispute has ‘crystallised’ (the referring party did not notify the responding party of the dispute, prior to issuing an adjudication);

The dispute referred to the adjudicator is different to the ‘crystallised dispute’; or

The dispute has already been decided upon in another adjudication: Vertase F.L.I. Limited v Squibb Group Limited [2012] EWHC 3194 (TCC): This related to two adjudications on the same issue.

The contract provisions made it clear that the adjudicator’s decision would be final until it was finally decided upon by litigation or arbitration. Mr. Justice Edwards-Stuart held, at paragraph 44, that the adjudicator could not contradict the decision made in the first adjudication.

This is irrespective of whether or not the adjudicator’s decision was right or wrong.

The dispute referred to the adjudicator is ‘substantially the same’ as a dispute already decided upon by a previous adjudicator (Part 1, Paragraph 9(2) of The Scheme).


3. Challenging the adjudicator’s jurisdiction to determine the specific dispute:

The adjudicator decided on a dispute that had not been referred to him:

McAlpine PPS Pipeline Systems Joint Venture v Transco plc [2004] EWHC 2030 (TCC) – the Adjudicator has no jurisdiction to determine a dispute which has not been referred to them in the notice of adjudication.

The adjudicator failed to reach his decision within the required timescale.

The adjudicator imposed a pre-condition on the publication of his decision, which would breach the obligations of the adjudicator under The Scheme:

Mott Macdonald Ltd v London & Regional Properties Ltd [2007] EWHC 1055 (TCC) – the court held that the adjudicator refusing to issue his decision until the referring party had paid his fees was a breach of the adjudicator’s obligation to act impartially (Part 1, Paragraph 12(a) of The Scheme). The court also held that such a pre-condition would mean the adjudicator will be in breach of Part 1, Paragraph 19 of The Scheme (the obligation to reach his or her decision within 28 days of the referral notice).


How can Barton Legal help?

At Barton Legal we have extensive experience in all the standard contract forms, including JCT as well as NEC, IChemE, and FIDIC.

We believe that an increased understanding of contractual terms and the roles and responsibilities of all parties ensures a successful conclusion to a project, which is why we always use plain English and ensure you understand and can apply the terms of your contract.

Our aim is to reduce legal gobbledegook and increase collaboration between parties to increase the prospects of completing your project on time and on budget

We place great emphasis in the early stages of the contract on understanding and preparing thoroughly, in order to avoid costly disputes later.

If you have any queries regarding any of these contracts or any form of construction dispute, please do not hesitate to get in touch by email  or call our office on 0113 202 9550.