Adjudication Timeline
The Construction Contracts Act 2013 ("CCA")introduced adjudication. The timeline below is an example of the several stages of an adjudication, which is not an exhaustive list, as it will depend upon how the case is presented and whether there are other issues which may delay each stage.
The period for the preparation of the referral document will depend upon the complexity of the payment claim.
Each time period is indicative only, and will be set by the adjudicator. The overall period however, is as set out in the Act, where periods can only be changed with the agreement of the referring party (for an extension of 14 days) or both parties (for any additional extension), after the payment dispute has been referred to the adjudicator.
We would be delighted to discuss any aspect of the process
Planning Stage - Referral Document
Step 1 - Preparation of Referral Document
Before you issue your notice of intention to refer, you should have completed your referral document. This document sets out the background of the dispute, the contractual framework, and details substantiating your claim.
Step 2 - Preparation of the Notice of Intention to Refer the Payment Dispute
This is the letter informing the other party that you intend to refer a payment dispute to adjudication. This letter should be drafted along with the referral.
Since the judgment of Simons. J in McGILL Construction Ltd v Blue Whisp Ltd the courts have stated that there is nothing to prevent one Notice of Intention to refer to cover more than one payment claim notice.
34. There is no legislative requirement, therefore, that there be separate referrals in respect of individual "payment claim notices". The claim advanced in the present case is correctly characterised as a singular "payment dispute" and it was properly advanced in one notice of intention to refer
Simons J at paragraph 34, McGILL Construction Ltd v Blue Whisp Ltd
Implementation
Step 2 - Notice of intention to refer a payment dispute
To commence a reference to adjudication, a party (called the 'Referring Party' will have to issue a notice of intention to refer a payment dispute under the CCA. The purpose of this document is to define the payment dispute.
Appointment of the Adjudicator
Step 3 - Agree to the identity of the adjudicator
The adjudicator can be agreed by both parties or where the parties cannot agree, the referring party will apply to the nominating body named in the contract.
The default position, if there is no nominating body in the contract will be to apply to the Chairperson of Construction Contracts Adjudication Services (CCAS).
It should be noted that all exchanges are to be issued to both parties simultaneously.
At this stage, the 'Responding Party' or 'Respondent' should be considering whether the Adjudicator has the jurisdiction to deal with the matter. This depends upon whether there is a 'payment dispute', as defined under Section 6(1) of the CCAS, before the Notice of Intention to refer was issued. It is important to consider this as early as possible, as otherwise, you may lose the right to challenge this.
Start of Adjudication
The Issue the referral document
Step 4 - Issue the Referral Document (within 7 days of the Adjudicators appointment)
Once the adjudicator is appointed, the Referring Party is required to issue the Referral document within 7 days of the Adjudicator's appointment, issued to both the adjudicator and the other party (the "Responding Party").
If the referral is not made within the 7 days, then the whole process will need to start again. It is therefore vital that the referral is completed (or nearly completed) before issuing the Notice of Intention to Refer.
The date the Referral is issued dictates the start of the 28 days timetable. Thereafter, the timetable can then only be revised by agreement of the Referring Party by up to 14 days, or longer by agreement of the Parties.
Responding Party's
Response
Step 5 - Produce and publish the response (within 7 - 14 days of the Referral)
The Responding Party will generally have between 7-14 days in which to respond.
It is therefore vital that if you have received a Notice of Intention to Refer that you act quickly - We can help!
The response is likely (but not always) to include a counter claim.
The counter claim may not necessarily have been provided to the Referring Party before the commencement of the adjudication.
Reply to Response
Strictly speaking, you should not assume that there will be endless opportunities to response or reply to the other party's submission.
If the responding party's response includes a counter claim, the referring party will have an opportunity to issue a response to the counter claim.
Rejoinder / Surrejoinder
The Adjudicator will normally request an extension of time to accommodate the request for the two documents if requested.
If the responding party's response includes a counter claim, the referring party will have an opportunity to issue a response to the counter claim.
Depending upon the Adjudicator's directions, the Responding Party may be afforded a further opportunity to issue a rejoinder on the Referring Party's reply.
Hearing or further exchanges
The adjudicator having received all of the documents which the parties wish them to consider, will then determine whether they can make a decision, based on the documents only or whether there are issues of fact which would need to be considered at a meeting.
Equally, either party may apply to the adjudicator to request a meeting.
If a meeting is required, depending upon the issues, the parties may have legal representation. The meeting is convened for the benefit of the adjudicator to understand all of the issues.
Adjudicators decision
Step 9 - The decision
Essentially, a payment dispute which is adjudicated upon will result in an award to one of the parties which will (in most cases) require a payment, therefore it is essential that you present the best possible case.
The process itself is designed to be quick 28 days from the referral (or such period longer period as may be agreed by the referring party or both parties after the dispute has been referred).
Enforcement
The decision will state that any payment shall be made within 7 days of that decision, in accordance with Section 7 (1) of the CCA.
After that, if payment is not forthcoming, the winning party will need to proceed to enforcement of the decision through the courts.
Section 6(11) of the Construction Contracts Act 2013 provides that an adjudicator's decision can, with the leave of the court, be enforced in the same manner as a judgment or order of the High Court.
There have been a number of cases where the winning party has had to proceed to enforcement.
The default position is that the successful party is entitled to enforce an adjudicator's decision pro tem, with the unsuccessful party having a right to reargue the underlying merits of the payment dispute in subsequent arbitral or court proceedings.
"...In brief, this legislation allows for the possibility of the making of, and enforcement of, adjudications in construction disputes on an expedited basis. Such adjudications are binding pending the resolution of the dispute between the parties by way of arbitration or legal proceedings. See section 6(10) of the Act as follows ---"
Simons J. In the case of Gravity Construction Ltd v Total Highway Maintenance Limited [2021] IEHC 19
Possible grounds that the courts will refuse to enforce an adjudicator's decision
The nature and extent of this discretion has been described as follows in John Paul Construction Ltd v. Tipperary Co-Operative Creamery Ltd [2022] IEHC 3 (at paragraphs 9 to 12):
Fair Procedure
The courts will refuse to enforce a decision where there has been an obvious breach of fair procedures - An example that the court provided was, for example, it would be inappropriate to enforce a decision in circumstances where an adjudicator had refused even to consider a right of set-off which had been legitimately asserted by the respondent.
The High Court will only refuse to enforce an adjudicator's decision on the grounds of procedural unfairness where there has been a blatant or obvious breach such that it would be unjust to enforce the immediate payment obligation. The court will not be drawn into a detailed examination of the underlying merits of an adjudicator's decision under the guise of identifying a breach of fair procedures.