DISPUTES FOCUS
Counting the cost
Our industry expert gives his warning about adjudication and reveals what you need to know before getting involved in the process
decision. That costs money, such as legal fees, and will take time, maybe three or four months. So, the question is: “What is the point of going to adjudication?” More and more adjudicators see jurisdiction points being raised by respondents from the outset of the process and these are sometimes put in place simply to give the respondent some basis upon which to challenge the adjudicator’s decision at a later date in an enforcement action.
By Len Bunton FRICS FCIArb, HON FRIAS
SEC Group Scotland I
n my last article I mentioned my increasing concerns about the adjudication process, and I have been asked to elaborate on these. In my view, it was a great idea to introduce adjudication into construction contracts more
than 20 years ago. You were not being paid, there was a dispute, so you kicked off an adjudication and 28 days or so later you had a decision which meant that, hopefully, you were paid what you were due, or most of it anyway. However, things have moved on and the adjudication process has altered radically, and not for the better. Let me tell you why. I think the fundamental problem now is that even if a referring party is successful in the adjudication, there is absolutely no guarantee that they will be paid what they are due (or what the adjudicator decided) and they will need to revert to the courts to enforce the adjudicator’s
34 CABLEtalk AUGUST/SEPTEMBER 2019
Challenging issues In my view, many of these challenges are manufactured and half-hearted, a ‘punt’, but nonetheless these have to be considered by the adjudicator who issues a non-binding conclusion after considering them. The challenges are wide, varied and imaginative – there is no crystallised dispute; the wrong Adjudicator
Nominating Body (ANB) made the appointment; the Notice of Adjudication was not issued to the other party before an application was made to the ANB etc. Now some of these can sound flimsy and you may ask: “So what? Let’s just get on with it.” When I am advising clients, my advice is to dispose of the jurisdiction point and just re- commence the adjudication but, in my view, it is incredible how many times the referring party will respond to the jurisdiction point with the request that the adjudicator does not resign. If there are no jurisdictional challenges, there is little ground for resisting enforcement. The other issue I have seen emerging in the last three or four years is that even after the adjudicator’s decision is issued in favour of the referring party, the respondent does not pay the
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