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Sunday, July 3, 2022

So you think you can cope with adjudication…


Kasia Dickson, Paralegal at Thomas Eggar LLP,  offers some practical tips when it comes to acting on adjudication referral effectively 


Your records appear to be in tip top condition, you know the project inside out and it seems that there is nothing preventing you from providing a top quality response. What could possibly go wrong? This article looks at some commonly encountered difficulties and provides some practical tips for responding to an adjudication referral effectively.  


You will no doubt have encountered adjudication at some point, whether against you or for your client, and you will be aware that the time scales are tight. Unless the parties agree otherwise, the adjudicator basically has 28 days from first sight of the Referral Notice to provide his/her decision. 


Before serving their Notice of Adjudication the Referring Party will have taken time to make sure that their documents are well prepared. The Responding Party has only seven days to put together and provide a comprehensive response. 


Even in a relatively straight forward adjudication responding within seven days presents a challenge. The reality is that addressing all the points in the Referral properly in seven days will be testing, particularly if the Referral corresponds with a period when for example the relevant staff is away on holiday.


Usually the arrival of a Notice of Adjudication is not a total surprise. It is likely that you will be aware of the dispute previous negotiations may have failed to reach a satisfactory resolution. You need to gather the relevant documentation i.e. the contract and contract documents, any specifications, meeting minutes, correspondence relating to the project and contemporaneous notes etc or to organise these by date. Hand written notes and diary entries of meetings, discussions and instructions etc can be important and these are often overlooked.    


Consider any witness evidence that you feel would be useful. Ideally statements should be taken from individuals that were involved with the day to day running of the matter and who can therefore explain the issues at first hand. Check that the relevant personnel still work for you, and perhaps if not contact them in advance and check whether they will be willing to provide a statement.  


Having your records prepared and witnesses on stand-by may not be enough, it is crucial that adequate resources are made available in-house (and externally) for the whole period of the adjudication. It is human nature to underestimate the amount of time and effort required to prepare a solid response, do not make this mistake.


If the timetable requires submissions by 5:00pm the documents will need to have been finalised much earlier to allow for final adjustments and for physical delivery to the adjudicator and the Referring Party by that deadline, unless the parties have agreed to electronic submission.


Consider also that all of this will be going on alongside the normal daily workloads it is likely to be challenging to have everyone who is needed available to deal with the adjudication. Planning is key. As soon as you think an adjudication is coming make plans to free as many of the relevant staff as possible, you will need more assistance than you anticipate. 


Remember also that it can take almost as much time and effort to properly cross-reference the documents, collate the relevant evidence and produce the documents as it takes to actually draft the response. To keep your costs down use capacity within your team to undertake this.


To recap, when you are faced with an adjudication do not underestimate the amount of work that will be required to response properly and plan your resources adequately. 




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