REUTERS | Brian Snyder

Taking the initiative in adjudication

If the Scheme for Construction Contracts governs an adjudication, the adjudicator is given certain powers, including the power to take the initiative in ascertaining the facts and the law necessary to determine the dispute. In exercising this power (rule 13), the adjudicator can:

  • Request documents from the parties.
  • Meet and question the parties and their representatives.
  • Give directions for the timetable of the dispute.
  • Issue other directions relating to the conduct of the adjudication.

The adjudicator should also avoid unnecessary expense (rule 12).

The power to take the initiative is limited only by the extent of the adjudicator’s jurisdiction, as set out in the Notice. If, when exercising his initiative, the adjudicator strays outside his jurisdiction, then his decision will be unenforceable. The adjudicator therefore has to take considerable care when adopting an inquisitive approach.

I have recently dealt with an adjudication where it has been appropriate to exercise certain of these powers, with the parties consent. The dispute was a fairly typical construction dispute. The amount in dispute on an interim application was in the region of £1.5 million. It involved 400 plus variations, plus some re-measurement issues, a claim for an extension of time and loss and expense.

In a bid to adopt a cost-effective approach to resolving the dispute, I was able to agree with the parties that I would deal in detail with only the 14 largest variations (where the difference between the parties was greater than £5k) and I would then apply my findings (in terms of a percentage calculation) to the remaining 380 odd variations. So, if my findings in relation to the largest 14 variations resulted in the Referring Party getting 30% of the difference between the parties, I would apply that percentage to the difference for the remaining variations where the difference was less than £5k.

Also, rather than the parties paying me to check all the re-measurements myself (I was presented with 10 lever arch files of re-measurement and marked up drawings), I managed to get both parties to agree that they would make oral representations to me on why their re-measurement should be preferred. After 45 minutes each, I was able to say which method of re-measurement I preferred in relation to each element of the work, and rely on that party’s figures.

Parties and their advisors often forget that the adjudicator can help them to resolve their dispute in a more creative way than simply labouring through the submissions and all the figures and coming to a decision. These are both examples of the adjudicator taking the initiative, applying a little bit of common sense and adopting a cost-effective approach to deciding the dispute. You should try it!

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