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Powers of the Adjudicator.

Posted on 19/03/2017 · Posted in Adjudication

Since 1996, when the Housing Grants, Construction and Regeneration Act (the Construction Act) was introduced dictating that all construction industry disputes in the UK be solved through adjudication, the adjudicator’s role has become increasingly more important, and before entering into adjudication proceedings, it is essential to understand the powers they hold.

An adjudicator is a bit like a judge in so far as he or she is a fully qualified, impartial and unbiased third party who listens to and carefully considers all the evidence put before him or her by the disputing parties, drawing on his or her legal and professional knowledge to come to an informed and final decision on the adjudication outcome. An adjudicator tends to be a construction professional or construction lawyer and therefore experienced in resolving any type of dispute that may arise. Like a judge’s ruling in a court of law, the adjudicator’s decision is also legally binding unless or until a final determination is reached on the dispute either in court or by resolution through an alternative dispute resolution method. Adjudication does not always lead to final settlement of a dispute because either of the parties has the right to have the same dispute heard afresh in court, although the majority of adjudication decisions do tend to be accepted by the parties as the final result.

Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”
Abraham Lincoln

The adjudicator’s authority is granted by the contract between the two parties and either the Construction Act or the Scheme for Construction Contracts (England and Wales) Regulations, known as ‘the Scheme’. While the Construction Act 1996 sets out the adjudicator’s basic duties and authority, the Scheme provides more detail and will apply in default unless the parties who prepare the notice of adjudication outline further detail on the adjudicator’s jurisdiction within the specific case. Outside of this, the adjudicator must act impartially and seek to avoid any unnecessary expense but otherwise has a fairly free hand as to how the adjudication is run.

The adjudicator’s powers as set out by the Scheme allow the adjudicator to:

  • request any party to the contract to supply any documents the adjudicator reasonably requires, including further written statements;
  • make site visits and inspections;
  • decide what language should be used, including whether translations are needed;
  • meet and question any of the disputing parties and their representatives;
  • decide whether to hold a hearing, and if so how formal the hearing will be;
  • decide whether to appoint experts, assessors or legal advisors, provided that the adjudicator notifies the parties of his or her intention to do so;
  • give direction on the adjudication timetable and issue other directions relating to the conduct of the adjudication.

The adjudicator must make his or her decision at the end of the 28 day period. This decision may involve an order for the payment of money from one disputing party to another (the adjudicator also has the power to decide when this money is paid and whether any interest is due on outstanding payment) or it may relate to a disputed fact or technical point. Under the Local Democracy, Economic Development and Construction Act 2009 (the ‘new’ Construction Act) which amended the 1996 Construction Act, adjudicators can now decide disputes based on an oral agreement or partly in writing rather than only in writing.

While adjudicators have significant power in all these areas where a dispute arises under the contract, it is worth remembering that they do not have the power to decide issues that have not been referred and can only make a decision on what has specifically been referred to in the notice of adjudication.

A primary objective of adjudication as a route to dispute resolution is to provide a fast working solution to an issue so that parties can quickly resume or continue to work under their contract, hence the process typically takes place over a 28 day period. But because the process is designed to be so quick and efficient, this also means there is little margin for error, so choosing the right adjudicator and understanding what powers they hold is an essential first step in any adjudication proceedings.

Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.