Adjudication Timeline

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 letter informs 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 upon by both parties, or where the parties cannot agree, the referring party will apply to the nominating body named in the contract.  If there is no nominating body in the contract, the default position 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 consider whether the Adjudicator has jurisdiction over 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. Considering this as early as possible is essential, as otherwise, you may lose the right to challenge this.

Start of Adjudication 

The Issue of 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, the whole process must start again. Therefore, the referral must be completed (or nearly completed) before issuing the Notice of Intention to Refer.

The date the Referral is issued dictates the start of the 28-day timetable. Thereafter, the timetable can 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 to respond.

If you have received a Notice of Intention to Refer, it is vital 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 respond or reply to the other party's submission.

If the responding party's response includes a counterclaim, the referring party will have an opportunity to reply to the counterclaim.

Rejoinder / Surrejoinder

The Adjudicator will generally request an extension of time to accommodate the request for the two documents if requested.

If the responding party's response includes a counterclaim, the referring party will have an opportunity to issue a response to the counterclaim.

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

After receiving all of the documents, the parties wish to consider, the adjudicator will determine whether they can decide based on the papers only or whether there are issues of fact that 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, the parties may have legal representation depending on the issues. The meeting is convened to help the adjudicator understand all of the issues. 

Adjudicators decision

Enforcement

The decision will state that any payment shall be made within 7 days of that decision, per 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 several 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 apparent breach of fair procedures - An example that the court provided was, for instance, it would be inappropriate to enforce a decision in circumstances where an adjudicator had refused even to consider a right of set-off which the respondent had legitimately asserted.

The High Court will only refuse to enforce an adjudicator's decision on procedural unfairness where there has been a blatant or obvious breach. 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. 

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