Adjudication and Conduct of the Adjudication

Section 6 of the CCA 2013 deals with adjudication. An outline of the process is set out below:

Serving a Notice of Intention to Refer for Adjudication

A party to a construction contract has the right to refer any dispute relating to payment to adjudication at any time.

The right may be exercised by the Claimant (“the Referring Party”) serving on the Respondent (“the Responding Party”) a Notice of Intention to Refer for Adjudication (Section 6(2)).

Under paragraph 5 of the COP, a notice of intention to refer a payment dispute for adjudication (“Notice of Intention”) shall include:-

1. the name, address and contact details of each party to the construction contract;
2. relevant details of the payment dispute to include the amount in dispute (even if the amount is zero), the nature of the payment dispute, and the site address;
3. a copy of the relevant payment claim notice, and any response to that payment claim notice as provided for in section 4 of the Act; and
4. relevant details to identify the construction contract and any supporting information that may assist an Adjudicator in understanding the nature of the payment dispute. Where a written construction contact exists, this must be attached.

The parties may agree to appoint an adjudicator of their choice or from the panel appointed by the Minister within 5 days of the Notice of Intention to Refer for Adjudication (Section 6(3)).

In default of agreement between the parties, the adjudicator shall be appointed by the chair of the panel (Section 6(4)). Under paragraph 15 of the COP, if such an application is made it shall be in writing and submitted to the chair of the Construction Contracts Adjudication Panel (“the Chairperson”) in accordance with the application procedures set out by the Construction Contracts Adjudication Service of the Department of Jobs, Enterprise and Innovation. If such an application is made it shall be copied to the other party / parties to the payment dispute and it shall include:-

1. the name, address and contact details of each party to the construction contract;
2. relevant details of the payment dispute to include the amount in dispute (even if the amount is zero), the nature of the payment dispute, and the site address;
3. a copy of the Notice of Intention including any accompanying documents attached to that Notice;
4. the date as to when the Notice of Intention was served on the Responding Party / Parties and how this was done; and
5. relevant details to identify the construction contract and any supporting information that may assist an Adjudicator in understanding the nature of the payment dispute. Where a written construction contact exists, this must be attached.

Referral for Adjudication

The Referring Party ("the Claimant") shall refer the dispute to the adjudicator within 7 days beginning with the day on which the appointment is made and at the same time shall provide a copy of the referral and all accompanying documentation to the Respondent (Section 6(5)).

Under paragraph 22 of the COP, the referral of the payment dispute to the adjudicator shall include:-

1. the name, address and contact details of each party to the construction contract;
2. relevant details of the payment dispute to include the amount in dispute (even if the amount is zero), the nature of the payment dispute, and the site address;
3. a copy of the Notice of Intention including any accompanying documents attached to that Notice;
4. the date when the Notice of Intention was served on the Responding Party / Parties and how this was done;
5. the contentions on which the Referring Party intends to rely upon to support their case; and
6. relevant details to identify the construction contract and any supporting information that may assist an adjudicator in understanding the nature of the payment dispute. Where a written construction contract exists, this must be attached

The adjudicator shall reach a decision within 28 days beginning on the day on which the referral is made or such longer period as the parties may agree (Section 6(6)).

The adjudicator may extend the period of 28 days by up to a further 14 days with the consent of the Claimant (Section 6(7)).

The Conduct of the Adjudication

Sections 6(8) and (9) and paragraphs 23 to 38 of the COP deal with the conduct of the adjudication. For example, it is set out that the adjudicator shall act impartially and shall comply with the COP (Section 6(8)), may take the initiative in ascertaining facts and the law (Section 6(9)), may request reasonable supporting and supplementing documents, appoint experts, assessors or legal advisors, make site visits and inspections, meet jointly with the parties and hold an oral hearing (where appropriate), (paragraph 24 of the COP).

The Decision of the Adjudicator

Under Section 6(10) the decision of the adjudicator is binding until the payment dispute is finally settled by the parties or a different decision is reached in arbitration or in court proceedings (Section 6(10)).

The decision of the adjudicator, if binding, shall be enforceable in the same manner as a judgment or order of the High Court (Section 6(11)) and shall, unless otherwise agreed by the parties, be treated as binding for all purposes (Section 6(12)).

The adjudicator may correct any slips in the decision but may not reconsider or re-open any aspect of the decision.

Payment of amount due pursuant to the Decision of the Adjudicator

If full payment of the amount due pursuant to the decision of the adjudicator is not made within 7 days beginning on the day that the decision is made, then the Claimant may suspend work by giving notice in writing under Section 7(2)).

Notice under Section 7(2) shall specify the grounds on which it is intended to suspend work and shall be delivered to the other party at least 7 days before the proposed suspension is to begin.

If the paying party does not pay in accordance with the decision of the adjudicator, the receiving party may seek enforcement of the adjudicator's decision in the courts.

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