We are often asked “can I adjudicate?”; “I did not serve any notice but do I still have to pay?”; “can I recover my costs?”.
The answer to these questions is not as straightforward as you may think. Adjudication is an ever-evolving process due to innovations in technology, the complex nature of construction contracts, and the flow of new construction case law. So, our advice to you would be to consider the following:
1. Do you have a dispute? Case law has found that a dispute does not need to be given a complicated definition, a normal dictionary can be used to define it.
2. Has your dispute ‘crystallised’? i.e., can it be said that both parties know about the dispute? Case law has held that even if the other party to the dispute ignores the claim, it can still be said that the dispute is known to both parties.
3. Has the dispute arisen under the contract? A classic example is, has the Contractor been paid by the Employer as per the agreement.
If you can answer ‘yes’ to these 3 questions, and you have been carrying out construction work then you will be able to adjudicate.
However, it is not unusual for us to review contracts which do not refer to adjudication or provide any sort of procedure to follow. If this describes your contract, then you will need to follow the adjudication procedure set out in The Scheme.
Whatever the rules are that apply, you will need to serve a notice of adjudication on the other party to the dispute. This must briefly describe the dispute. There are other requirements that this notice must follow or you risk not serving a valid notice. We can explain those to you.
An adjudicator must then be appointed. If you don’t follow the requirements of your contract when appointing the adjudicator then the adjudicator’s decision may be unenforceable.
A referral notice will need to be served after this. This must also be carefully drafted to ensure you have covered all the legal arguments and factual points you need to make. The referral notice can make or break an adjudication.
It should be noted that any expenses you incur are not recoverable from the other party. So bear in mind, you could be in a situation where you have incurred costs, but have not convinced the adjudicator and so have lost. You will be responsible for your costs and the adjudicator’s.
So here are some common questions and answers:
- What is a pay less notice?
- If I don’t have a pay less notice can I still not pay?
- The pay less notice had to be served 2 days before the final date for payment. Does it matter if I serve it 1 day before?
- Is it enough to just say “I am not paying you!”?
- The contract says I have to use the RIBA to appoint the adjudicator and we used the RICS – does that matter?
- The other side served a pay less notice and didn’t pay me, so I walked off site. They say I am in breach. Am I?
- My contract does not even mention adjudication. Can I adjudicate?
- I supplied lots of materials to site and haven’t been paid. Can I adjudicate?
- I don’t like the adjudicator who has been appointed. Can I do anything?
- An adjudicator gave a decision in our favour but the other side have not paid. What do I do?
The best answer we can give to any of your questions is you should instruct a firm with expertise in adjudication. Barton Legal are a team who have many years of experience of bringing and defending adjudications. Our team is led by Bill Barton who has masses of experience.
If you need advice on an adjudication and how you go about starting and finishing an adjudication, then please do not hesitate to call us on +44(0)113 202 9550, alternatively please email firstname.lastname@example.org or visit us in office at 12 New Road Side, Rawdon, Leeds, LS19 6HN.