Since coming into force as part of the UK’s Construction Law in 1998, Adjudication is currently the most commonly used formal tool for resolving disputes concerning the construction industry in the UK.
In addition to the statutory regime, most UK domestic standard forms of construction contract also support Adjudication as a form of dispute resolution. The statutory Adjudication provisions apply to all UK Construction Contracts and do not require the consent of each party. Contractual Adjudication provisions may have different requirements. Neil Boothroyd accepts direct appointments to act as party representatives in adjudication and Neil accepts appointments to act as an Adjudicator or may be appointed by an Adjudicator Nominating Body (ANB).
Adjudication Frequently Asked Questions
Adjudication is a time limited contractual or statutory procedure for swift interim dispute resolution. It is provided by a third party adjudicator selected by the parties in dispute, or nominated by an ANB. Adjudication decisions are binding unless and until they are accepted by the parties or a final determination of the issues is obtained by arbitration or litigation.
Any party to a Construction Contract1 has a statutory right to refer a dispute to Adjudication. The majority of construction activities fall within the definition of a construction contract but there are some exceptions.
What constitutes a Construction Contract is defined by sections 104 and 105 of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”). In simple terms, a Construction Contract is an agreement that provides for the carrying out, or organising someone else to carry out, construction operations; providing labour; doing architectural, design or surveying work; providing advice on building, engineering, interior or exterior decoration, or the laying out of landscape.
Construction Operations are defined by section 105 of The Housing Grants, Construction and Regeneration Act 1996. The definitions are quite broad and cover most activities that you would think of as being associated with construction work, but there are some notable exceptions, e.g. drilling for oil or gas or the manufacture or delivery to site of building components and materials.
Unfortunately, the answer is, it depends. There is an exception to the statutory provisions of the HGCRA applying to a construction contract with a residential occupier but you should start by looking at your contract. If the contract doesn’t mention adjudication, then the statutory exception is likely to apply. If you have signed a contract that includes an adjudication provision, you would be bound by that provision.
If your verbal agreement is for a ‘construction operation’ the statutory provisions for Adjudication and payment would apply.
Once proceedings have begun, Adjudication is designed to be a 28 or 42 day process, culminating in the Adjudicator’s decision being binding for both parties. The actual length of the proceedings may be varied by agreement between the parties.
Costs can vary considerably depending on the complexity of your dispute, the way you may choose to be represented and who you appoint as an Adjudicator. Elements of cost you need to consider are:
- The cost of engaging solicitors, barristers, experts or other professionals to represent you. These costs will generally not be recoverable as part of an adjudication.
- Fees of the adjudicator. These can vary considerably depending on a number of factors including, amongst other things, the value and complexity of the case, the relative skill and experience of the adjudicator, the length of the proceedings. The fees for the adjudicator will be advised when the adjudicator is appointed. There are a number of Low Value fixed fee adjudication schemes that may be appropriate.
- If there is a meeting, there may be additional costs associated with providing facilities for this,
- It is usual in adjudication for both parties to bear their own costs. Unless the parties agree for the adjudicator to deal with party costs you would not be able to recover your own costs even if you win. So on a positive note, it means you don’t need to worry about the other side’s costs.
To appoint Neil to act as an Adjudicator click here.
There are a number of Adjudicator Nominating Bodies (ANBs) who operate appointment schemes. A list of these can be seen below:
If you’re owed money under a construction contract, Neil Boothroyd will be able to review the details of your circumstances and advise on the options available. Each situation is different.