In this five part series, we examine the primary dispute resolution forum for construction disputes – adjudication. We will answer some frequently asked questions in relation to adjudication. Last time we explained the process. This time we will look at the appointment of the adjudicator and their powers.
How is the adjudicator appointed?
The parties can either agree the identity of the adjudicator or the Referring Party can apply to an Adjudicator Nominating Body (an “ANB”). However, it is important that an application to the ANB is not made before the Notice of Adjudication has been served on the Responding Party or the Responding Party will have grounds for a jurisdictional challenge (more on that in Part 4).
The latest research by the Adjudication Society shows that over 90% of appointments are made via an ANB rather than being agreed. The higher the value of the dispute, the more likely the parties will have incentive to agree the identity of the adjudicator.
The contract may specify a particular ANB to which the parties have agreed to apply. If not the Referring Party can apply to any ANB it chooses There are currently 18 ANBs and consideration should be given as to which one is appropriate for a specific contract. Different ANBs have different requirements of their adjudicators and the disciplines on a panel will vary. Most are lawyers or cost consultants by background but some are engineers, architects or surveyors.
If appointment by an ANB is required, there is usually a form to complete and return with a copy of the Notice of Adjudication and a small fee to pay to the ANB.
What powers does the adjudicator have?
Under the the Scheme for Construction Contracts, an adjudicator can take initiative in ascertaining the facts and the law necessary to determine the dispute. They can:
- request any party to the contract supplies such documents as are reasonably required;
- meet and question any of the parties to the contract and their representatives;
- subject to obtaining any necessary consent from a third party or parties, make such site visits and inspections as appropriate;
- subject to obtaining any necessary consent from a third party or parties, carry out any tests or experiments;
- obtain and consider such representations and submissions as required and provided they notify the parties, appoint experts, assessors or legal advisers;
- give directions for the adjudication timetable, any deadlines, or limits on the length of written documents or oral representations, to be complied with; and
- issue other directions relating to the conduct of the adjudication.
These powers are for the adjudicator alone to exercise but it is common for parties to make suggestions to the adjudicator as to how they think such powers should be exercised. Such requests should be carefully considered as they may not always be well received by the adjudicator.
In Part 4, we will discuss the potential challenges that can be made to adjudication decisions.