Adjudication is quick, and the courts enforce adjudicators’ decisions firmly. That makes it the default way to resolve a construction payment dispute. But it is not free, each side usually pays its own costs, and a decision is only as good as the case behind it. These are the questions we ask before advising a client to start.
Contents
1. What Exactly is the Dispute?
An adjudicator can only decide the dispute in the notice of adjudication, and the dispute must have crystallised. Your claim must have been put to the other side and rejected, or ignored for long enough. A vague notice, or one that tries to refer several separate disputes, invites a jurisdiction challenge. Defining the dispute well is the single most important decision in the case.
2. Is It a Notified Sum or a True Value Claim?
If the other side failed to serve a valid payment notice or pay less notice, you may be entitled to the sum you applied for without arguing about value at all. Those cases are short and strong. A claim for the true value of a final account, with variations and loss and expense, is a different exercise. It needs evidence, often witness statements, and sometimes expert input.
3. Can You Prove It?
Adjudicators decide on documents, read quickly. Records made at the time, such as notices, diaries, photographs, signed daywork sheets and correspondence, carry far more weight than statements written for the adjudication. If the key facts are not in the records, ask whether they can be proved another way before you start the clock.
4. What Will It Cost, and What Will You Recover?
Allow for your own time, your adviser’s fees, any expert, and a share of the adjudicator’s fees. Compare that with what you are likely to recover, not what you are claiming, and with the cost of carrying the debt. Consider too whether the other side is good for the money. A decision against an insolvent company is worth little.
5. What Will the Other Side Say?
Expect jurisdiction points, set offs for delay or defects, and arguments about notices. Some can be answered in the notice of adjudication by framing the dispute widely enough to include them. Others need evidence ready in the referral. A response that raises a defence you have not prepared for can turn a strong case into a close one.
The Alternatives
A clear letter setting out your entitlement, with a deadline, settles many disputes. Suspension for non payment, on 7 days’ notice, is a strong lever where the notified sum is unpaid. Mediation can work where the relationship matters. Adjudication is usually the right answer when those have failed or the sums are significant, and the decision is needed quickly.
How We Can Help
Our adjudication readiness review answers these questions in writing for a fixed fee, credited against further work if you go ahead. Our adjudication service covers referrals, responses and enforcement.
About the Author
Benjamin Bjork
Benjamin is a quantity surveyor with a master’s degree in construction law and arbitration, awarded with distinction, and is a Fellow of the Chartered Institute of Arbitrators. He founded Mill Court in 2009 and works on claims, adjudications and contract management on power, energy, infrastructure and building projects.
