Can I go to adjudication?
To understand if your dispute can go to adjudications you need to assess two central questions:
- Is there a Construction Contract consisting of Construction Operations and does the contract have an adjudication clause?
- The definition of a construction contract is outlined on our page on the HGCRA. There is a wide range of activities that fall under the definition of a “Construction Operation” and remember a construction contract does not have to be on paper to exist.
- Where you have a written contract and it includes express terms, that meet the requirements of the HGCRA, then these will govern the adjudication process.
- Where there is no written contract, or no such provisions are contained within the contract, terms will be implied into the contract through statute under the procedure of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (“The Scheme”).
- Do you fall under any exclusions to the adjudication provision, such as a “residential occupier”?
- When was the contract entered into?
Post then amendment of the HGCRA that came into force on the 1st of October 2011, contracts may be made orally and can benefit from Adjudication.
If a Contract was made pre 1st of October and post 1stMay 1998, that contract must be made in writing.
If the answer to point one indicates that you fall under the provision of the Construction Act for adjudication then consider the next question:
- There must be a dispute between the parties of a matter that arises under the contract.
- The definition as to what constitutes a dispute was set out in Amec Civil Engineering Ltd v Secretary of State for Transport (2004).
If it is a matter outside of the contract, or where the jurisdiction is outside that to which the contract applies, it will be necessary to seek redress by other means.
Points to consider are:
- Has there been a claim submitted?
- Has there been a claim submitted?
- Has there been a delay, or delaying tactics employed, in providing an answer or has the other party simply remained silent over a period of time?
Submitting a claim naturally will not in itself constitute a dispute, rather it is the response that matters.
For example, it is not unusual that the rights of a party to refer to adjudication has been challenged by the respondent purely on the basis that there is no dispute… that they are “looking into it”.
Parties have often thought that as long as they denied that there was a dispute, they would not be subject to proceedings. However there are simple questions that can identify where a party is trying, unfairly, to avoid the adjudications process:
- Finally in some cases parties will try to claim that there is a difference between there being a dispute and a difference. As per the dicta of Lord Justice May in the above case, the words dispute or difference are ordinary words of the English language, they are not terms of Art. In other words they have the same meaning and therefore will still act where a respondent will not admit that a claim or dispute exists purely so they can avoid adjudication.
If you can demonstrate that you have a claim under a construction contract claim that has crystallised then you should be in a position to refer the matter to adjudication.
- If you are technically in a position to refer a matter to adjudication the only question then is whether commercially that is the most appropriate action for you.
- With the range of variables that this involves we can’t give you a simple answer on this website. However with more information we can advise on this and on likely costs involved in the process balanced against the strength and value of your claim.
- Please feel free to call us on 020 7167 6606 and we can help you further.