Lisa Cattanach from Construction Dispute Resolution offers a second lot of tips on how to make the process run smoothly
Over the years, we have found that adjudication can be highly effective as it provides parties with a timely resolution to their dispute and so keeps costs low. But we have also noticed a number of recurring problems that can hinder your chances of success.
Following our last article, here are just a few more of our tips.
1. Don’t leave jurisdiction challenges until it is too late
Any jurisdiction challenge needs to be raised as soon as the party becomes aware of it. If you are raising an initial challenge, objecting to the adjudicator’s appointment on the basis that he does not have jurisdiction to decide on the issues submitted, this should be done as soon as you become aware of it. Otherwise there is the potential argument that you may have waived your right to challenge the decision on the grounds of jurisdiction at a later date.
Remember jurisdiction challenges have cost implications, and this has to be weighed up against any tactical reasons you may have for raising a challenge that may not be particularly sound. But even if your challenge is unsuccessful you must include in all correspondence afterwards a rider that you are participating in the adjudication under reservation of your jurisdiction challenge, if that is your intent.
2. Don’t forget about the respondent’s right to raise any defence
Previously the respondent could only submit defences that answered the issue outlined in the notice of adjudication. Following on from a number of important cases between 2008 and 2010, however, this position has been altered.
The respondent can now raise any defence to a claim referred by the other side. Essentially, they are no longer limited by the evidence or arguments submitted by the referring party. In compiling their counter-arguments they can look to any defence and evidence they deem to be appropriate to the case. For example, in quantum claims the respondent can raise counter claims. The adjudicator can’t decide or award these, but he must take them into consideration when determining the amount payable to the referring party when making his decision. Such an action may wipe out the referring party’s chances of recovering any of the claims advanced.
3. Do answer any questions put forward by the adjudicator
Adjudicators can pose questions to the parties in order to clarify any issues put forward in the submissions. In this regard, it is important to answer the question put forward in a clear, succinct way. You also must provide answers within the deadlines provided, to prevent any arguments that you have failed to comply with a direction, thus rendering the adjudicator unable to take the submission into consideration. This is, of course, a key consideration where clarification of a specific issue may assist the argument you are advancing.
The adjudicator will also not appreciate answers that do not provide him with the clarification sought. So answering questions in a roundabout fashion, or answering a completely different question to that posed, will be of no more benefit than not answering at all. Behaving like this could also increase the cost, if the adjudicator has to seek clarification repeatedly.
4. Do ensure all your staff involved behave professionally throughout the proceedings
While we understand that disputes can cause stress levels to rocket, it is paramount that professional conduct is maintained by all personnel involved in the dispute throughout the adjudication process, particularly in the case of a hearing. It will not help your party’s case if you are seen to take matters personally or, conversely, to make personal attacks on the other side.
To give your party the best chance of success, your case should be put forward in a reasoned manner, so it is helpful to stick to the facts of the dispute to avoid embellishment of arguments. This applies particularly to witness statements provided by those involved with direct experience of the contract works. It is not uncommon for a party’s case to crumble when witness evidence is given, as it is easier to distort the facts on paper than in a face-to-face hearing.