Jane has been a construction adjudicator since 2000. She is on the TeCSA and Chartered Institute of Arbitrator panels.
Jane contributed to the College of Law Media programme (April 2012) on the changes to adjudication made by the Local Democracy, Economic Development and Construction Act 2009 which came into force in 2011.
A party considering adjudication should check the terms of the construction contract to see if a nominating body is specified. If not, the Act and/or Scheme for Construction Contracts enables the referring party to choose an Adjudicator Nominating Body (ANB). Alternatively the parties may have named an adjudicator in their contract or can agree who to have as their adjudicator.
Under the Local Democracy, Economic Development and Construction Act 2009 (the "new" Construction Act) which amended the Housing Grants, Construction and Regeneration Act 1996, it is no longer necessary for a "construction contract" to be an agreement in writing or evidenced in writing. Adjudicators can now decide disputes based on an oral agreement or partly in writing and partly oral.
However under the "new" Construction Act it states that:
- (1) A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this section.
- (2) The contract shall include provision in writing so as to -
- (a) enable a party to give notice at any time of his intention to refer a dispute to adjudication:
- (b) provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within 7 days of such notice;
- (c) require the adjudicator to reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred;
- (d) allow the adjudicator to extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred;
- (e) impose a duty on the adjudicator to act impartially; and
- (f) enable the adjudicator to take the initiative in ascertaining the facts and the law.
- (3) The contract shall provide in writing that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.
The parties may agree to accept the decision of the adjudicator as finally determining the dispute.
- (3A) The contract shall include provision in writing permitting the adjudicator to correct his decision so as to remove a clerical or typographical error arising by accident or omission.
- (4) The contract shall also provide in writing that the adjudicator is not liable for anything done or omitted in the discharge or purported discharge of his functions as adjudicator unless the act or omission is in bad faith, and that any employee or agent of the adjudicator is similarly protected from liability.
- (5) If the contract does not comply with the requirements of subsections (1) to (4), the adjudication provisions of the Scheme for Construction Contracts apply.
Thus a failure within the contract to comply with any of the subsections (1) to (4) means that all the adjudication provisions are replaced by those in the Scheme. Unlike the payment terms under the Act, it is not just the absent or non-compliant provision that is replaced by one from the Scheme, but all the Scheme provisions will apply.