is generally supported by an array of appendices to rebut the Referring Party’s case, which may include a counterclaim as part of their defence. It is interesting to note that statutory adjudication under the HGCRA does not prescribe the Response. However, it is clear that a party has a right to defend a case made against them. The adjudicator will then direct a Reply to the Response from the Referring Party; following receipt of this, the adjudicator may then direct a Rejoinder to the Reply from the Responding Party. Again, this depends on the nature of the case, the complexities and the timescales. The parties may request that an oral hearing be convened, or indeed, the adjudicator may direct that an oral hearing be in order to understand the issues, the party’s case, or the evidence. The adjudicator then proceeds to their Decision, which, to be valid and enforceable, must be served within the statutory or agreed timescales. The adjudicator’s decision is temporarily binding and does not finally determine the rights of the parties (unless the parties agree otherwise). The Decision, if issued with reasons, explains the adjudicator’s decision-making and on what basis they make decisions. Again, the Referring Party may request that the adjudicator does not provide reasons; the reason for doing so may be to save costs. Are you able to challenge an adjudicator’s decision on enforcement? Adjudicators’ decisions can be challenged, however, for limited reasons, and the general approach of the courts is to enforce adjudicators’ decisions. Should a decision be challenged, the losing party would need to demonstrate that the adjudicator either had no jurisdiction to arrive at their decision or that there was a material breach of the rules of natural justice. Should a party form the view that the adjudicator has no jurisdiction to act or continue with the adjudication, their position should be made clear and at the outset that it forms this view. The party then has two options, to participate or not. It would not be wise for a Responding Party to sit silently and not defend its case on the supposition that it will be successful in the challenge of the decision. If a party is dissatisfied with an adjudicator’s decision, it is free to pursue a final resolution of the dispute through litigation or arbitration. What should one expect from the construction adjudication process? Construction adjudication could now no longer be considered as an alternative, as it is the main method for parties to resolve their construction disputes in the UK. This is supported by the view of Lord Justice Coulson, made in the Court of Appeal, that adjudication “is not an alternative to anything; it is the only game in town” (John Doyle Construction Limited (in liquidation) and Erith Contractors Limited). This is due to the fact that the parties are able to seek a resolution of their dispute and/ or difference in an expeditious and confidential way. The construction industry is a fast-paced industry, and parties cannot wait months for a resolution to their dispute. The parties should expect an adjudicator’s decision that meets the needs of the case, decides the issues, and has been reached by an experienced individual with appropriate qualifications. A new form of ADR – RICS Conflict Avoidance Process. This is an early intervention process in construction and engineering projects to ensure that issues that are emerging are resolved by the parties involved without recourse to costly and time-consuming dispute resolution processes. The process involves the input of a seasoned industry consultant, drawn from any discipline, who will work with the parties and come up with a series of binding or non-binding recommendations. Anecdotally, the process has been very effective in resolving issues between the parties and in allowing them to carry on and complete the projects in a spirit of trust and mutual cooperation. In Scotland, there has been excellent support for the Construction Industry Collaborative Voice (CICV), and construction organisations like SBF, SELECT, CECA, SNIPEF, BESA, and the Finishes and Interiors sector have all signed the Conflict Avoidance Pledge and have encouraged their membership to do likewise. So far, over 430 construction organisations throughout the UK have signed the Pledge, and members of SBF are encouraged to do so by following this link - www.rics. org/capledge. The Conflict Avoidance Coalition Steering Group is chaired by Mr Len Bunton, a well-seasoned and leading dispute practitioner in the UK. WWW.LAWYER-MONTHLY.COM 9 Sources of assistance: (2021). Wilmot-Smith on Construction Contracts (4th ed.). Oxford University Press. (2018). Coulson on Construction Adjudication (4th ed.). Oxford University Press. (2021). Keating on Construction Contracts (11th ed.). Thomson Reuters (t/a Sweet & Maxwell). (2013). The Jackson ADR Handbook (1st ed.). Oxford University Press. Nazzini, R & Kalisz, A 2023, 2023 Construction Adjudication in the United Kingdom: Tracing trends and guiding reform. King’s College London. https://doi.org/10.18742/pub01-161 Andrew D. Reid BSc (Hons), Dip.Adj, LL.M, FCIArb, FRICS, MCInstCES, MCIOB, NECReg Director, ADRQS Ltd. 24 Blythswood Square, Glasgow, G2 4BG Tel: 0141 674 8699 Email: andrew@adrqs.co.uk www.adrqs.co.uk
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