Construction adjudication: paving the way for a sensible alternative dispute resolution
11 MAY 2022
What is construction adjudication?
It is mandatory adjudication for disputes in construction contracts which was introduced by statute in 1996. This is significant, as a party to a construction contract has the right to refer a dispute to adjudication at any time. It is a 28-day procedure that navigates resolving disputes in the construction industry. The aim of the act is to provide the means by which the right to payment, also known as “the lifeblood of the construction industry” would be supported by the scheme to enforce due payment.
Initially this form of adjudication only allowed contracts in writing but due to the progressive nature of the scheme, in 2009 the Act was amended to extend its scope to all contracts.
What is adjudication appropriate for:
- Interim payments
- Delay and disruption of the works
- Extensions of time for completion of the works
- Defects in the works
- The final account
- Breach of contract
- Termination of contract
- Professional negligence.
The benefit of construction adjudication
Lord Briggs encapsulated the key benefits this brings to the construction industry, the scope of the jurisdiction highlights how every matter under a qualifying contract can be resolved with speed as the decision is made by an independent adjudicator with specialist knowledge without using court time and resources. The efficiency of this scheme is that it is grounded in statutory and contractual right, and it is conferred on all parties of a construction contract. It is also an enticing way to resolve a dispute for all involved when comparing costs to other methods of dispute, as it is less expensive than choosing litigation.
What is the effect of an Adjudicators decision?
It is interim binding, they are binding decisions until the dispute is finally determined by legal proceedings, by arbitration or by agreement.
The decision is enforced by the successful party in the Technology and Construction Court.
The decision is rarely challenged by the losing party.
How has adjudication evolved over time?
Those in the legal professional field have often voiced that adjudication was never intended to deal with complex claims that concerned fraud or professional negligence. However, in practice, adjudicators are specialised in those disputing areas. For example, most of the construction industry institutions rapidly registered as adjudicator nominating bodies and assembled panels of experienced professionals from the industry. Signifying adjudicators have become proficient in dealing with large complex disputes which often involve a vast amount of documents including expert reports and witness statements. Consequently, the process has received judicial approval as the accepted alternative dispute resolution mechanism of choice.
Lord Neuberger encapsulated the clear future of adjudication in light of the pandemic, as Covid related claims sored and the courts were at threat of being overwhelmed, it was emphasised that adjudication requires no infrastructure, no technology and no state resources and urged those with disputes to use this means of alternative dispute resolution.
But the success of adjudication rules in other fields is yet being explored, although pilot schemes have launched in sectors concerning computer science, professional indemnity insurers and even The Centre for Effective Dispute Resolution’s Rules for Commercial Adjudication. The significant issue in the success of these schemes may be that the very existence of these rules is not widely known in the legal community itself which may stagnate the growth of adjudication in other sectors.
However, it also shows on the horizon may be an adjudication scheme for commercial contracts, based on construction case law the commercial scheme would have to satisfy the requirement of the Unfair Contract Terms in Consumer Contracts Regulations 1999, where contracts are entered into with consumers. But the success of adjudication lies in those choosing to adopt existing adjudication rules. The driving force may come from lawyers who have a duty when drafting and advising on contracts to discuss and encourage dispute resolution provisions. The judicial approval of adjudication signifies that adjudication rules and schemes must be discussed and considered which could evolve different sectors to begin to introduce and develop their own sector specific adjudication scheme in the near future, as we are beginning to see already.
Although other sectors may not be quick to introduce their own rules, the judicial approval signifies adjudication ought to be considered as a sensible alternative dispute resolution nonetheless.
Yulia BarnesManaging Partner
Yulia Barnes is our Managing Partner. She is an experienced solicitor and advises on a wide range of contentious and non-contentious matters for both private and corporate clients.Yulia started her legal career at a large international Magic Circle firm. She then became a partner at a regional law firm and headed a Dispute Resolution Department. She then moved in-house before starting her own Boutique practice, Barnes Law, with the aim of providing exclusive services to high net-worth individuals and privately-owned businesses. More details can be found on her LinkedIn profile.
Expertise Yulia and her team are widely recognised for their professional and practical approach to matters. She is committed to ensuring that her clients’ objectives are achieved in the most cost-effective way possible.
Approach Yulia has a wealth of experience working with businesses of all sizes: from large multinational corporations to start-ups. She has particular expertise in a hospitality industry, investment funds, private and corporate clients, and focuses on startups and technology-driven companies. Yulia brings the same level of attention to detail, professionalism and a personal touch to every case and client, and truly immerses herself in her clients’ businesses. She prides herself on her problem-solving, commercially astute approach and her track record of partnering with clients to help them achieve their strategic objectives.
Will joined Barnes Law as an Associate Solicitor in Spring 2023, shortly after qualifying in September 2022.
Will works mostly on real estate and corporate/commercial matters. Will enjoys providing advice on transactional matters.
Away from the office, Will can be found reading or playing golf. While he played rugby until university, and rowed throughout his degree, he now tends to watch both from the sidelines. During the winter he can also be found skiing.
Will plans to continue developing his legal skills and experience at Barnes Law, under the expertise and guidance provided by Yulia.
Mark is an experienced solicitor whose practice areas include intellectual property (IP), IT, data protection and general commercial law.
Mark advises businesses of all sizes – from sole traders to corporations. Among his clients are: clothing and lifestyle brands, restaurants and food suppliers, IT companies, banks, hedge funds and venture capital firms, education providers, medical and pharmaceutical brands.
Outside of his practice, Mark also advises members of the Institute of Directors as part of its Directors’ Advisory Service.
- Prosecuting a UK trademark application on behalf of an education provider and representing them in related UK IPO opposition and revocation proceedings;
- Advising a publisher and a delivery business on data protection matters, B2B and B2C Ts & Cs of sale, website and app Ts & Cs, all aspects of global brand protection;
- Advising footwear brands, alternative asset managers and hedge funds on their global brand protection, including overcoming various refusals, representing them in opposition proceedings and settlement negotiations;
- Representing a central bank in opposition proceedings before the UK IPO;
- Advising a lifestyle brand concerning trademark clearance and protection, negotiations for a website/app development and maintenance agreement.
Ioulia TatawatFamily Law Adviser
Ioulia has a solid background in family law and offers guidance, clarity, and support to clients during one of their most challenging times in their life.
She advises on all three pillars of separation: divorce, children matters and financial settlements. Ioulia is a member of Resolution and is keen to try to settle matters at early stages.
Ioulia is dedicated to assisting clients and navigating them through their legal matters with clarity and support.
Alex joined Barnes Law in September 2023 after finishing his master’s degree in law. Prior to joining Barnes Law, Alex worked in property litigation at Ashfords. Alex assists Yulia on a variety of both contentious and non-contentious matters.
Outside of the office, Alex enjoys reading and hiking. Prior to working in law, Alex was a competitive tennis player.
Alex continues to develop his skills in legal practice under Yulia’s guidance, he plans to sit the Solicitor’s Qualifying Exams (SQE) in 2024.
Mehves joined Barnes Law in August 2023, right after graduating from Queen Mary, University of London (LLB Senior Status). As part of her qualification journey, Mehves is currently pursuing her Legal Practice Course (‘LPC’) at the University of Law. She also holds a degree in European Union Law from Maastricht University, Netherlands.
Mehves works closely with Yulia on a variety of contentions matters and also writes Barnes Law’s legal blogs, manages social media accounts and is responsible for marketing.
Outside of work and studies, she enjoys running, tennis and yoga.
Mehves is looking forward to developing her legal skills at Barnes Law.
Julia PodgornovaInvestor Relationship Manager
Julia guides clients in making important business decisions based on comprehensive risk assessment and strategy. She supports investors in devising strategies designed to maximise each business’s potential from pre-seed to IPO.
Julia’s particular area of expertise are IT start-ups at different stages. Julia supports business through their fund-raising journey. As an Investor Relations Manager, Julia communicates with investors to facilitate a smooth round and legal part of each transaction.
In her free time Julia enjoys sailing, ballroom dancing, art exhibitions and travel.