Construction Adjudication
Our experienced Adjudication Barristers are experts in all aspects of adjudication law as it applies in construction contracts between employers, professional consultants, contractors and sub-contractors. They are regularly asked to advise in contentious and non-contentious construction contract cases, and have sound knowledge of the adjudicator nominating bodies, adjudicators and specialist courts that they appear before.
Adjudication
The law governing the resolution of construction disputes in England and Wales changed in May 1998 when the Housing Grants, Construction and Regeneration Act 1996 (“the 1996 Act”) came into force. The 1996 Act introduced the concept of mandatory resolution of construction disputes by way of Adjudication. This gives parties to a construction contract the right to refer a dispute to Adjudication at any point in time during the contract. The 1996 Act has since been amended by the Local Democracy, Economic Development and Construction Act 2009 (“LDED&CA 2009”)
Adjudication is therefore a quicker, less formal and more cost effective alternative to traditional commercial litigation for first instance resolution of construction disputes.
Samuel Okoronkwo
Adjudication Expert
Our Head of Chambers, Samuel Okoronkwo has decades of experience and expertise in providing advice and representation to parties to construction and engineering contracts and successfully resolving disputes through adjudication. He is a member of the Technology and Construction Bar Association (“TECBAR”) and is a tecbar trained adjudicator.
In the Construction and Engineering industry, Samuel initially trained and practised as a Professional Quantity Surveyor, starting with the world’s first known Quantity Surveying firm, Henry Cooper & Sons, established in 1775. Thereafter, after gaining a MSc degree in Project Management and Property Development Samuel spent several more years as a Construction Project Manager during which he had first-hand managerial responsibility for the planning, organising, directing and delivery of multi-million-pound construction and engineering projects, including the Harlequin Shopping Centre in Watford, for Capital & Counties Plc; and the regeneration of London’s Canary Wharf business district with Lehrer McGovern International and Olympia & York.
Before being called to the Bar in 2002, Samuel Okoronkwo spent time in private practice as a construction contracts administrator in the West End, where he advised employers, professional consultants and contractors on all types of construction disputes. This has continued with his practise at the Bar, where he has acted for construction adjudication solicitors; employers; contractors; subcontractors; and professional consultants in a number of construction adjudications.
Given Samuel Okoronkwo’s commercial; practical and legal experience he understands that most clients would prefer to resolve their construction disputes without resorting to formal dispute resolution, if possible. He is well versed in the use of negotiation; mediation; and his Dispute Avoidance Protocol to attempt a resolution where possible before the Adjudication Procedure begins.
Steps in the Adjudication Process
The fast track Adjudication procedure produces a decision pro-tem, usually within 28 days unless extended by consent, which must be obeyed unless successfully challenged in arbitration or litigation. A simplified adjudication process will usually take the following steps:
The claim should have crystallised. In other words, the prospective Referring Party should have explicitly notified the prospective Responding Party of their claim and the basis of the same, giving an opportunity for the Responding Party to admit the claim to no avail.
Therefore, both parties should be clear in their minds what the dispute is and the remedy sought. Our barristers are experienced in advising clients on this very important point and how the court may refuse to enforce an adjudicator’s decision which is not based on a crystallised claim.
Once the Notice of Adjudication is served, the next step is to appoint an adjudicator. If an adjudicator is not identified in the construction contract, our barristers can advise on the appointment of an Adjudicator.
The appointment of an adjudicator must usually be done within seven days of the service of the notice of adjudication. In the event this is not done, the Claimant must restart the adjudication process.
The Referring Party, who initiates the adjudication, is also known as the Referring Party must issue the Referral Notice following the appointment of the Adjudicator. Given the time constraints of the adjudication procedure, the Referral Notice is the referring party’s opportunity to make as detailed submissions as possible to in support of his claim to the Adjudicator.
Our barristers have considerable experience in this form of written advocacy and are available to advise on the drafting and service of a Referral Notice, advising on necessary expert reports and witness statements and supporting information, all of which should be done within seven days of serving the notice of adjudication.
The Adjudicator must reach his/her decision within 28 days of service of the referral notice. This period can be extended by a further 14 days if the Referring Party agrees, or can be further extended if both parties agree.
The Adjudicator’s decision is binding until the underlying dispute is finally determined by court proceedings, arbitration or by agreement of the parties via negotiation or mediation.
Should the Adjudicator’s Decision not be complied with within the timescale stated in his Decision. The receiving party will be entitled to secure a court order through an expedited procedure in the law courts for the enforcement of the Adjudicators Decision. Our Barristers a conversant with the swift enforcement of Adjudicator’s Decisions and can advise accordingly.
Construction Adjudication Services
- Firstly, the barrister will review the construction contract in question and advise you in a consultation on the merits of the claim using the adjudication procedure. It may be that you are advised to negotiate; mediate; or use our Dispute Avoidance Protocol to attempt a resolution before the Adjudication process begins. At the same time, the barrister will implement a strategy to suit the facts of your case. If you are defending a Construction Adjudication, the barrister will advise you on the likelihood of successfully defending or averting a decision against you.
- Next, whether it be issuing a Notice of Adjudication; a Referral Notice; or a Response the barrister, with his support team will draft the necessary documents with detailed legal and factual submissions in order to put your best case before the Adjudicator. Our barristers are also adept at corresponding with the other side and the Adjudicator on procedural issues, such as points of reference; and extensions of time.
- Should the Adjudicator’s directions involve a hearing, then our barrister’s expertise in advocacy will stand you in good stead.
- Finally, if the Adjudicator finds for or against you, our barristers have experience in advising on next steps post decision. This includes advising on enforcement or resisting enforcement including launching commensurate Part 8 Claims for alternative declaratory relief in the Technology and Construction Court.
Mercantile Barristers have expertise in providing advice and representation in construction adjudications for solicitors, employers, professional consultants, contractors and sub-contractors. If you require construction adjudication advice and support contact our Construction Adjudication Barristers today by filling in our Enquiry Form; emailing us at enquiries@mercantilebarristers.com; or contact us by telephone on 0203 034 0077 and we would be happy to assist.
How Our Process Works
You can call, email, or fill out an enquiry form to tell us about your case. One of our specialist clerks will speak with you to make the arrangements to advance your case.
Our specialist clerk will match you with the barrister with the expertise to deal with all aspects of your case. They will also obtain and organise the papers the barrister will have to consider in your case.
Our clerk will agree the fee for your consultation with the barrister beforehand. The clerk will then arrange a convenient time for you to have the consultation by video call, telephone or in person.
In the consultation the barrister will assess your legal position, devise a legal strategy, and give you appropriate advice on the necessary next steps to achieve your objective.
FAQs
Here are some of our FAQs which you may find of assistance. If not we are happt to talk, call now on 020 30340077
Mercantile Barristers Construction Adjudication Barristers advise on construction adjudications from determining whether there is a dispute, right to make a Referral through to enforcing an adjudicator’s decision. Our barristers also advise construction dispute solicitors in complex construction adjudications to resolve the dispute as quickly and cost-effectively as possible. Our construction adjudication barristers have experience in:
• Reviewing construction contracts to ascertain compliance with the 1996 Act and the Scheme for Construction Contracts
• Advising on the timing to refer a dispute to adjudication
• Advising on the merits of your case
• Drafting legal submissions in Notices; Responses; Replies and Rejoinders
• Assisting in identifying the relevant evidence
• Enforcing Adjudicator Decisions
• Resisting Enforcement of Adjudicator’s Decision
• Part 8 Claims
Mercantile Barristers Construction Adjudication Barristers advise on construction adjudications from determining whether there is a dispute, right to make a Referral through to enforcing an adjudicator’s decision. Our barristers also advise construction dispute solicitors in complex construction adjudications to resolve the dispute as quickly and cost-effectively as possible. Our construction adjudication barristers have experience in:
• Reviewing construction contracts to ascertain compliance with the 1996 Act and the Scheme for Construction Contracts
• Advising on the timing to refer a dispute to adjudication
• Advising on the merits of your case
• Drafting legal submissions in Notices; Responses; Replies and Rejoinders
• Assisting in identifying the relevant evidence
• Enforcing Adjudicator Decisions
• Resisting Enforcement of Adjudicator’s Decision
• Part 8 Claims
The 1996 Act initially was silent about how costs should be dealt with. However, the Local Democracy, Economic Development and Construction Act 2009 which came into force on 1 October 2011, provides that any contractual provision which attempts to allocate the costs of an adjudication (including agreements both as to the allocation of the adjudicator’s fees and expenses and agreements as to who is to bear the parties’ own costs) between the parties will be invalid, unless it is made after the adjudicator is appointed.
Therefore, each party will usually bear their own costs but the parties will be liable to pay the adjudicator a reasonable amount in respect of fees for work reasonably undertaken and expenses reasonably incurred by them. The Adjudicator will decide how their costs are shared between the parties, normally in relation to success.
The obstacles in raising a successful challenge to the Adjudicator’s Decision are significant. This can come as a shock to the unprepared party who may have been ambushed by their opponent and must immediately pay a significant amount of money in accordance with the Adjudicator’s decision.
Although Adjudication brings practical benefits to dispute resolution in the construction industry, the implication of the short 28-day time table is that the parties involved in the dispute must be highly organised and skilled in order to succeed.
The Referring Party (i.e. the Claimant) who might initially be in control of the timetable when issuing the Referral Notice will have to be ready to deal with a substantial Defence within a short time. The Responding Party (i.e. the Defendant) on the other hand is regularly exposed to dealing with and preparing a Defence to a substantial, ‘smash and grab’ claim, (which has taken much longer to prepare) within the short period of a few days.
Mercantile Barristers Construction Adjudication Team has advised and represented clients in the following Construction Adjudication subject matters:
• Building Defects
• Delays
• Extensions of Time
• Final Accounts
• General Breach of Construction Contract
• Interim Payments
• Loss & Expense
• Loss of Profits
• Valuations