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Drafting the Notice of Adjudication

The recent Adjudication Society event focused on nominating adjudicators. It was a group discussion in the style of “Question Time“, with a number of nominating bodies represented (TeCSA, CEDR, ICE, RICS, IDRS).

The discussion was very interesting but, unfortunately, for those who did not attend, the Chatham House Rule applies, and so I can’t tell you about the list of issues, or the answers! I know, what a spoil sport. Building you up something, only to drop you flat!

However, one of the issues got me thinking, and I thought I’d share it, and my views on it, with you. It may help you next time you are drafting a Notice of Adjudication.

The issue:

“If it is not clear from the Notice of Adjudication or application form [to the ANB] what the true nature of the dispute is, should a nominating body ask the parties for more information so as to better decide on the type of adjudicator to appoint?”

I’m sure we are all familiar with what the purpose of the Notice is, but just in case you need a refresher, the Notice is to:

  • Inform the responding party that a dispute has arisen and it is being referred to adjudication.
  • Define the scope of the dispute that the adjudicator has jurisdiction to decide.

In my view, if the Notice of Adjudication is drafted in a way that makes it difficult for the ANB to identify the right adjudicator for the dispute, the party drafting the Notice has failed. This second limb is by far the most important. If the adjudicator’s jurisdiction is unclear, there will be increased potential for jurisdictional challenges and, if successful, potentially, an unenforceable decision.

The referring party should always draft the Notice carefully. There is no opportunity to amend the Notice, or rectify errors in the Notice in the Referral Notice (see KNS Industrial Services (Birmingham) Ltd v Sindall Ltd [2000] EWHC Technology 75).

You have been warned!

One thought on “Drafting the Notice of Adjudication

  1. An interesting topic but there are really a couple of issues here although they are interrelated. First, is the issue of the scope of the adjudication which Mr Molloy’s article deals with.

    Secondly, is the question of the potential attributes of the adjudicator, which in my view is essentially what the Adjudication Society issue is about. TeCSA already includes the following wording in its application for the nomination of an adjudicator –

    “We think it desirable that the Adjudicator should have experience in the following fields or professions:”

    Also following the decision in Makers UK Ltd v London Borough of Camden [2008] EWHC 1836, the RICS has amended its application form to seek views concerning the “Professional Background of the Adjudicator”.

    So, if not clear from the documents submitted to an ANB it does seem at least desirable for an ANB to ask the applicant what the true nature of the dispute is, always assuming that this does not delay the nomination process.

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