Adjudication exists for quick and easy resolutions in cases of construction project disputes – in comparison to lengthier and typically more expensive resolution methods such as litigation. However, there are reasons that adjudication can become more complicated.

One such reason is when an adjudicator’s decision needs to be challenged.

What is an adjudicator’s decision?

The process of adjudication involves an unbiased third-party (the adjudicator) reviewing a case and making a decision. This decision is legally binding and will usually be delivered within 28 days (this can be extended up to 42 days in certain circumstances).

In most cases, this is why adjudication is the preferred ADR method for construction disputes. The short time frame prevents any further delays to a project and usually comes with significantly less legal fees than other resolution methods.

However, challenging an adjudicator’s decision can make things more difficult but this does not mean you are without a right to do so.

When can you challenge an adjudicator’s decision?

There are various times when an adjudicator’s decision can be challenged. Or, a better question would be to uncover the reasons why.

• Jurisdictional challenges: There may be cases where an adjudicator lacked authority to make a decision. One example of this could be that a dispute had not crystallised, meaning no formal dispute existed.

• Breach of natural justice: Some cases may have been handled unfairly. For example a party may not have been given fair opportunity to present their case, bias (or the perception of bias) from the adjudicator, or a decision being based only on partial points raised by the parties involved.

• Errors: Errors made during any step of the adjudication process can be used as evidence to challenge an adjudicator’s decision. This could be incorrect notices or disputes that actually exist outside the scope of the construction contract.

• Fraud: If there is evidence that a decision was obtained through fraudulent behaviour or information, this provides grounds to challenge that decision.

How can you challenge an adjudicator’s decision?

Understanding when and how an adjudicator’s decision can be challenged is not only important should you need to challenge a decision yourself. It is vital to know how a decision made in your favour could be challenged if you have not followed the correct proceedings.

In some cases, signs that an adjudicator’s decision will not be completely fair can appear during adjudication. Should this happen, you have the right to withdraw and begin the process again. However, this means every step of the process will have to be repeated from the beginning regardless of where the breakdown is.

For cases where a decision has already been made, it must be honoured regardless of if you plan to challenge it. 

Whether an adjudicator finds for or against you, Mercantile Barristers have experience in advising on next steps post decision. It is vital to seek this advice before moving forward with your own decision to challenge. Additionally, we can help thoroughly prepare for you the process and ideally remove any need to challenge a decision.