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Adjudication
The
Housing Grants, Construction and Regeneration Act 1996 and the new
generation of standard forms of contract that comply with the Act
are bringing adjudication, as the primary means of ADR, to the fore.
Adjudication provides a quick and relatively inexpensive method of
ADR that is binding unless overturned by the courts, arbitration or
as otherwise agreed by the parties. It therefore does not stand in
place of arbitration or litigation unless the parties so agree. Its main value to the industry
is perhaps equivalent to 'the policemen on the beat'- If you know
the law is at hand, you are less likely to break it! Therefore there
has been noticeably more effort on the part of contract
administrators, be they employers and main contractors, to act
judiciously and apply the contract correctly.
The speed with which
the adjudication process occurs usually requires that the
adjudicator takes the initiative in ascertaining the facts and the
law. It is therefore crucial that the adjudicator who is appointed
has the knowledge to ascertain both the facts and the law.
In references to adjudication remember:
- Ensure that you
have a dispute in terms of the contract and that ordinarily,
only such issues are referred to the adjudicator.
- For there to be a
dispute, there has to be a difference of opinion over the issues
that should be crystallised prior to the reference to
adjudication. For example, avoid presenting a new logic linked
programme that the other party has not even seen, let alone
disputed, for the adjudicator is unlikely to have jurisdiction
to hear the issue.
- Read the
procedure set out in the contract or The Scheme for Construction
Contracts, whichever is applicable, and follow the requirements
precisely.
- Contra-charges
from sums due should not be withheld unless timely notice and
reasons for such deductions have been given or the payee is
insolvent and the payer has identified contra-charges. If you have
withheld sums due without written notice in the correct form, you are likely to be in the wrong.
- Disputed
counter-claims will probably not be heard concurrently with
claims unless timely and appropriate notice is given.
- Adjudication is
generally unsuited to multiple and/or complex issues.
Despite the speed of resolution in adjudication, the adjudicators
still do their utmost to apply the principle of natural justice i.e.
to afford each party a reasonable opportunity of putting its case
and dealing with that of its opponents. However, do not expect to be
allowed the opportunity of presenting cart loads of claim documents.
Adjudicators will rarely regard such submissions as reasonable in
the circumstances of adjudication and are likely to require the
information to be condensed and resubmitted in short order!
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