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.
“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  EWHC Technology 75).
You have been warned!