Construction
How can a barrister help with adjudication?
- Written by: Samuel Okoronkwo
- Published on:
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Any legal action can seem intimidating when you are unprepared. Perhaps this is your first time dealing with adjudication or you have used adjudication in the past that resulted in an unsatisfactory resolution. Either way, you are now unsure if this is the right course of action for dispute resolution.
In either situation, you most likely entered into adjudication without the support of a barrister. While there is no legal requirement that a barrister must be involved in adjudication, it is extremely beneficial to seek this legal support.
Discussing strategy and general advice
Before adjudication even becomes a topic of discussion, a barrister can look over your case and advise if it is the best course of action. In matters of construction project disputes, adjudication will usually be the best method of ADR (Alternative Dispute Resolution).
From here (or if adjudication is already the decided ADR method), a barrister will review the construction contract in question and offer guidance on the merits of your claim using adjudication. You can then consult with the barrister on the best strategy to implement and determine the likelihood of your preferred resolution being reached.
Drafting important documents
Adjudication is simple in comparison to traditional litigation but errors can be easily made that will complicate or even invalidate the process. Many of these errors occur in the drafting of important documents such as notices.
For adjudication to begin (once a claim has been crystallised), the Notice of Adjudication must be served by the Referring Party to the Responding Party. The purpose of this notice is to inform the Responding Party that the dispute will be referred to adjudication. Additionally, a Referral Notice and potentially a Response (if you are the Responding Party) will need to be prepared.
If any of these notices contain errors, this can invalidate adjudication and require the process to begin again. Working with a barrister will ensure that all notices (whether it be a Notice of Adjudication, a Referral Notice or a Response) are accurate and properly prepared. With support from their team, the barrister will draft the necessary documents with detailed legal and factual submissions in order to put your best case before the adjudicator.
Handling communications
In some cases, a hearing may be necessary. This is a formal, legal proceeding where a neutral decision-maker (the adjudicator) will hear oral evidence and arguments from the parties involved.
A hearing may not always be required as most construction disputes can be resolved through “document only” adjudication. However, in cases where a hearing is required, a barrister’s expertise in advocacy will stand you in good stead.
Even in cases where a hearing does not take place, a barrister can still help with handling communications between you, the adjudicator and the other party involved.
Enforcing or challenging an adjudicator’s decision
You may not always agree with an adjudicator’s decision and there are some circumstances where you can challenge that decision. Whether the adjudicator finds for or against you, a barrister can advise on next steps – including enforcing or resisting enforcement.
Explore our construction adjudication services
Adjudication can be a swift process for dispute resolution with the aid of a barristers. Mercantile Barristers are available to advise on construction adjudications from determining whether there is a dispute through to enforcing an adjudicator’s decision.
Get in touch for adjudication advice and guidance.
Appointing an adjudicator
Once the Notice of Adjudication has been served, the next step is to appoint an adjudicator. Both parties can agree on an adjudicator or the Referring Party can make an application to an Adjudicator Nominating Body (ANB) – this is usually done in cases where the parties are unable to agree on an adjudicator.
Preparing evidence
While there are no formal rules for what evidence must be submitted for an adjudicator to review, there are guidelines to ensure you are doing all you can to turn the decision in your favour. An adjudicator will review this evidence and potentially conduct their own investigation through site visits and their own specialist knowledge.
Receiving a decision
A decision will be reached within the typical 28 day period for adjudication. The adjudicator will weigh the evidence, resolve any conflicting facts and make a binding decision that will resolve the dispute. It is important to note that this decision may not always be completely in line with one party or the other. In some cases, the decision will be made from the adjudicator’s own reasoning based on the facts presented to them.
Challenging an adjudicator’s decision
While an adjudicator’s decision must be honoured in the moment it is delivered, the decision can be challenged at a later date. This is why you will often see or hear the term “pay now, argue later” associated with adjudication. To avoid any further delays, the decision must be honoured (usually in the form of payment) even if one or both parties intend to challenge the decision.
If you deem an adjudicator’s decision “unfair”, this can also be challenged but you must have evidence of bias that does not rely on your opinion or feelings of the outcome delivered.
Learn some common reasons adjudication may not effectively resolve a dispute and how to address it in this article: When can adjudication go wrong?
Conclusion
While it is ultimately the adjudicator that makes the decision in adjudication, there are steps you can take to ensure a fair outcome. If you are unsure about any part of the process, Mercantile Barristers are experts in all aspects of adjudication law as it applies in construction contracts between employers, professional consultants, contractors and sub-contractors.
Get in touch for adjudication advice and guidance.
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