REUTERS | Petar Kujundzic

Alarm bells often ring in adjudication

Many people are familiar with the Pink Floyd song, Time, and its opening passage of clocks chiming and alarms ringing. Alarm bells often ring in adjudication as well.

Dealing with a dispute in 28 days is very demanding for all those involved in adjudication, regardless of the size of the claim referred to the adjudicator. Even experienced parties can sometimes under-estimate the amount of work that is involved to ensure that the adjudicator understands the issues and arguments, and is able to produce a clear and cogent decision in the time allowed.

Given the importance of time in adjudication, it still surprises me how often referring parties refuse to extend the 28-day process, either by the 14 days provided for by section 108(2)(d) of the Construction Act 1996, or otherwise by agreement with the responding party.

I recently had to deal with an unusual request for more time. The responding party decided it had to replace its current legal team (solicitors and experts) and start again with a new legal team. After seven unsuccessful adjudications, perhaps it felt a fresh perspective was required. However, replacing its legal team obviously created an added difficulty in having to respond to the eighth referral to adjudication within a relatively short period of time, and resulted in a request for more time, something the referring party was reluctant to agree to.

What could I do?

The adjudicator’s jurisdiction does not extend to granting the responding party more time beyond the time limit imposed by statute and/or the contract. Only the referring party can agree to an extension of time.

The question I had to ask was whether the responding party had sufficient time to enable it to respond to the referring party’s case. Had I concluded that it did not then, if I wasn’t able to accommodate further time within the overall time allowed for the adjudication, I should resign. The effect of this would have been to delay things while the referring party started all over again.

In addressing the question of time, I formed the view that the fact that the responding party had only recently instructed its new legal team was not relevant. However, the nature and complexity of the matter referred was. (The point is that I must be able to reach a fair decision within the time limit agreed by the parties.) In the end, I decided that some more time was merited, but not the full extension requested by the responding party.

As the referring party was unwilling to extend the 28-day timetable, I was able to allow a further 7 days for the responding party’s response (day 14 of the 28-day period) by deciding that a meeting with the parties was unnecessary. However, this was only as a result of having to spend (arguably) considerably more time reviewing the content of the supporting documents at an earlier stage than would perhaps have been needed had I convened a meeting.

Given the importance of time, it is no surprise that this isn’t the first time I have written about it:

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