Is Adjudication a dirty word?
I’ve recently made the jump from working on site as a construction professional, over to the legal arena in Quigg Golden. For some the perception of adjudication is one of distaste; it’s a process to be avoided at all costs.
One of our clients feared that an adjudication would taint the image of the company and reflect badly on it securing further work with a public body, with whom they had delivered many successful projects in the past. Over the years our client has built good personal relationships with contract administrators and project managers. They were fearful that bringing adjudication proceedings would place them at risk of being discounted for further work and being labelled as being contractually aggressive or difficult to work with.
As it panned out, and as is often the case, our client got what they wanted from the Adjudicator’s decision. Subsequently he informally met with the project manager of this project. Following an ‘off the record’ conversation, the PM told him that they were neither surprised with the decision, nor aggrieved by the process. It had to happen the way that it did.
Construction Managers often fear the potential distraction from their day-to-day work because of the time involved in preparing an adjudication, the ‘fear of the unknown’, i.e. worries about how long it will take, what resources it will eat into, and if they will ever get any return for the time and effort expended. All too often this simply serves to compound the frustrations of the ongoing dispute.
Typically (if the word typically can be used given the nature and issues of disputes vary considerably!) a briefing meeting at our office to ascertain the background to the dispute followed with handover of all relevant documentation, e.g. the contract, the programme, relevant emails, site photos, meeting minutes etc. (usually sent by e-mail) is followed up by a detailed risk assessment by Quigg Golden.
This is when we delve into the nuts and bolts of the dispute. We look at the mechanisms of the contract, be they payment terms, Z clauses etc., and assess the options available to the client. We do this by providing a comprehensive risk assessment which details the strengths and weaknesses of the client’s position. We do not shy away from letting them know if their case is weak! It all comes down to being able to prove via the terms you contracted on, what you are entitled to get paid.
Adjudication is not without its risks, but if managed properly with the right level of preparation and supporting documentation going into the referral notice, it can yield the results you had hoped for. It is often described as ‘rough justice’ due to the speed of the process and the difficulty in challenging a decision. Therefore, your case really does need to be professionally constructed, citing pertinent case law, and with a detailed understanding of the relevant contractual mechanisms both parties have signed up to. It is also crucial that your case is presented in a format that makes it easy for the Adjudicator to follow your argument, supplemented with sound evidence.
While not without risk, adjudication can be a very useful tool at your disposal to access sums being unlawfully retained, be that interim payment applications or withheld retention – both of which we see at Quigg Golden daily.
If you have any questions at all about anything above or any part of the Adjudication process, or you have a dispute you wish to address, feel free to drop me an email at Stephen.McKenna@QuiggGolden.com. We’re here to help. As an experienced Project Engineer, I know how tough it can be out there on the ground!
Stephen McKenna is an Associate at Quigg Golden.
Published 11th June 2019
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