So, you have decided to resolve a dispute via adjudication. It is understandable considering dispute avoidance is a much more appealing alternative to spending time in court – especially in an industry such as construction that must also contend with time and budget constraints. However, the time you are attempting to save and conflict you wish to avoid may still manifest if the adjudication process is not followed to the letter.
A very common way this happens is through the serving of an invalid notice. Perhaps you are already dealing with this issue and are searching for a resolution. Or, you are considering the adjudication process but want to enter it prepared. Wherever you are in your adjudication process, allow me to offer some relief and guidance.
What causes a notice to be invalid?
For those who have not yet started the adjudication process, it is important to know that a Notice of Adjudication must be served outlining the particulars of the dispute. Notices of Adjudication cannot be amended at a later date and that is why an invalid notice will severely limit the remedies you are entitled to.
Invalid notices can be caused by:
- Errors in drafting such as incorrect party names or addresses.
- Lack of a valid dispute.
- Early issuance (before a dispute has actually arisen).
- Improper service.
How can you remedy an invalid notice?
The unfortunately short answer is invalid adjudication notices cannot be remedy. However, you do have the option to issue the notice again. While this will be a time consuming process it is advisable over going ahead with the original notice. As previously stated, an incorrect or invalid notice will reduce the remedies available to you and may leave you with a less than satisfactory result.
In some cases, since the adjudication notice triggers the process, there is a chance that the proceedings could be considered void. Therefore, it is essential that you get the notice right the first time. Knowing the implications of an invalid notice can make this a daunting task and perhaps you are now considering avoiding adjudication altogether. However, there are simple steps you can take to ensure you remove the risk of an invalid notice.
Steps to avoid an invalid notice
If you are re-issuing a notice then the best practice is to ensure you are avoiding whatever caused the original notice to be invalid. For example, if it was the fact that the dispute was not clearly outlined, pay special attention to this when re-issuing. In some ways, knowing what went wrong the first time will make it much easier to avoid another invalid notice.
For those of you issuing a notice for the first time, I suggest following these best practises:
- Before drafting a notice, establish that there is a dispute. For the sake of clarity, a dispute is when one party has a disagreement with another. In construction this could involve completing projects late or over budget or not completing the project to the agreed upon standard.
- Establishing the dispute will make clearly outlining the specifics of it much easier and therefore avoid any errors that could lead to an invalid notice.
- Clearly outline what the referring party (you) is seeking to resolve, whether that is payment or an extension on project time.
- Ensure names and addresses of all parties involved are correct.
Lastly, your best security for any and all legal contracts, documents and notices is to enlist professional assistance. Mercantile Barristers have extensive experience in the adjudication process, particularly within construction, and are available to you during any stage of the process.
I can personally help you attain if adjudication is even the right course of action, review contracts to ensure all the relevant information is present and aid in drafting an accurate adjudication notice. Should you require further assistance, this is also available to ensure you experience as smooth a process as possible that results in your desired outcome.
