expertise: commercial disputes management:
construction
Adjudication:
controlling adjudication What
is adjudication? -
it is quick, binding dispute resolution. It
is the statutory right given to every party to a "construction
contract" to refer a dispute to an independent third
party (the "adjudicator") who is to give his
decision on the dispute within 28 days. The adjudicator's
decision must be complied with unless and until the dispute
is finally determined by an arbitrator or judge. The courts
have and will enforce an adjudicator's decision summarily. This
right cannot be contracted out of because it arises under
statute, namely the Housing Grants, Construction and Regeneration
Act 1996 (the "Act"). This right applies to all
construction contracts entered into after 1 May 1998. Who
is affected by adjudication? - nearly everyone in the construction
industry. If
your organisation:
-
procures construction work (whether
on a one-off basis or regularly)
-
carries out construction work
-
provides and instals goods for the
construction industry or
-
provides services (including advice)
to the construction industry
it
is likely that your contracts will be caught by the Act
because they will be "construction contracts". There are
exceptions and with each contract it is vital to check whether
the Act applies or not. If it does either party will have
the right to refer a dispute to an adjudicator. This is so
regardless of whether your contract contains any other form
of dispute resolution provision such as arbitration. How
does adjudication work? -
usually under the Government Scheme Unless
the construction contract contains an adjudication procedure
which complies with the Act, the "Government Scheme
for Construction Contracts" will apply. Under this
the claimant will refer his claim to an adjudicator who
will be named in the contract, agreed by the parties or
appointed by an independent professional body such as the
RICS or RIBA. Generally,
the claimant will put forward his case and the other party
will respond. The adjudicator will then decide what further
steps are needed before he reaches his decision which he
must do within 28 days. The claimant can agree to extend
this deadline. The
parties must comply with the adjudicator's decision and
the court's will enforce it. If either party wants to challenge
the decision he must do so after he has complied with it How
can Martineau help? -
we can control adjudication effectively and efficiently With
our practical knowledge of advising clients involved in
adjudications we can help you both before and after you
have entered into a contract. Before
you enter into a contract we can:
-
tell you if your contract is a construction
contract caught by the Act
-
provide you with an adjudication
procedure
-
help you choose an adjudicator
to name in your contract, and
-
draft the terms of the
adjudicator's appointment
When
a dispute arises we can:
-
tell you the merits of your case
-
prepare
your case
-
conduct the adjudication including
any hearing on your behalf, and
-
enforce the adjudicator's
decision
You
will receive advice from our team of specialist construction
lawyers. If appropriate we will obtain expert advice from
engineers, quantity surveyors etc. However, experience
tells us that the key to success in adjudication is working
effectively and efficiently with you and your employees. The
cost? We
are not bound by hourly rates. We are ready to discuss
fixed, capped and conditional fee arrangements and to advise
you of the "after event" legal insurance which
is now available. What
next? If
you want to discuss further how we can help you please
call either Paul Mountain,
partner, or Michael
Craik, partner.
key expertise: Paul Mountain
Partner
paul.mountain@martineau-uk.com Michael
Craik
Partner
michael.craik@martineau-uk.com Stephen Belshaw
Partner
stephen.belshaw@martineau-uk.com
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