Construction Dispute Resolution’s Lisa Cattanach offers a second set of pointers for a smooth process.
Over the years, we have found that adjudication can be highly effective as it provides parties with a timely resolution to their dispute and so keeps costs low. However, we’ve noticed some recurring issues that could jeopardise your success.
Following our last article, here are just a few more of our tips.
1. Don’t leave jurisdiction challenges until it is too late
Any jurisdiction challenge needs to be raised as soon as the party becomes aware of it. As soon as you become aware of the adjudicator’s appointment and believe he lacks jurisdiction to rule on the issues presented, you should file a formal challenge. Alternatively, you could be argued to have waived your right to later challenge the decision on the basis of jurisdiction.
Remember jurisdiction challenges have cost implications, and this has to be weighed up against any tactical reasons you may have for raising a challenge that may not be particularly sound. But even if your challenge is unsuccessful you must include in all correspondence afterwards a rider that you are participating in the adjudication under reservation of your jurisdiction challenge, if that is your intent.
2. Remember that the respondent has the right to present any defence that he or she chooses.
Respondents used to be limited to presenting defences that addressed the specific question raised in the notice of adjudication. Following on from a number of important cases between 2008 and 2010, however, this position has been altered.
The respondent can now raise any defence to a claim referred by the other side. Essentially, they are no longer limited by the evidence or arguments submitted by the referring party. They are free to draw on any defence or evidence they see fit when putting together their counter-arguments. For example, in quantum claims the respondent can raise counter claims. This cannot be decided or awarded by the adjudicator, but the amount payable to the referring party must be taken into account when making a decision. Such an action may wipe out the referring party’s chances of recovering any of the claims advanced.
3. Answer any questions the adjudicator may have.
Adjudicators can pose questions to the parties in order to clarify any issues put forward in the submissions. Answering the question put forth in this regard in a concise and clear manner is critical. Answers must be submitted on time to avoid the adjudicator believing that you failed to follow instructions and thus disqualifying your submission from consideration. This is, of course, a key consideration where clarification of a specific issue may assist the argument you are advancing.
Answers that do not provide the clarification sought by the adjudicator will also be unwelcome. It’s better to not answer at all than to answer a question in a roundabout way or with a different question entirely. If the adjudicator is required to seek clarification on a number of occasions as a result of this behaviour, the overall cost could rise.
4. Ensure that all of your employees involved maintain a professional demeanour at all times.
All parties to a dispute should maintain professional conduct at all times during the adjudication process, especially during hearings. We understand that disputes can cause high levels of stress. It will not help your party’s case if you are seen to take matters personally or, conversely, to make personal attacks on the other side.
To give your party the best chance of success, your case should be put forward in a reasoned manner, so it is helpful to stick to the facts of the dispute to avoid embellishment of arguments. This is especially true for testimonies from people who have been directly involved in the contract work itself. Witness testimony often causes a party’s case to fall apart because it is much easier to fabricate facts in writing than it is in person.