Aegis Contracts Management’s Post

Adjudication and arbitration are both dispute resolution methods used in construction contracts, but they differ mainly in their process and formality: - Adjudication is a quick, interim process where an adjudicator makes a decision on a dispute, usually within a few weeks. This decision is temporarily binding until resolved by arbitration, litigation, or an agreement. - Arbitration is a more formal process that involves one or more arbitrators who hear evidence and arguments from the parties involved and make a binding decision that can typically be enforced like a court judgment. This process is generally more detailed and can take several months to complete. #Adjudication #Arbitration #disputeResolution #Contracts

Fatal Mistakes in Construction Adjudication Construction adjudication, like any legal process, can be complex and subject to potential fatal mistakes that can significantly impact the outcome of disputes. Here are some common fatal mistakes in construction adjudication: 1. Lack of Understanding of Adjudication Process: Failing to understand the adjudication process and its requirements can lead to errors in submissions, missed deadlines, or inadequate preparation, ultimately weakening your case. 2. Incomplete Documentation: Insufficient or incomplete documentation can weaken your position during adjudication. Failing to gather and present all relevant documents, including contracts, correspondence, and project records, can undermine your arguments. 3. Failure to Serve Notice Properly: Adjudication often requires strict adherence to notice requirements. Failing to serve notices correctly or within the prescribed timeframe can render your claims invalid or unenforceable. 4. Inadequate Legal Representation: Not engaging qualified legal representation with experience in construction adjudication can be a fatal mistake. Skilled legal professionals can help navigate the complexities of the process and advocate effectively on your behalf. 5. Failure to Address Jurisdictional Issues: Adjudication proceedings must be conducted within the proper jurisdiction and according to relevant laws and regulations. Failing to address jurisdictional issues at the outset can result in challenges to the validity of the adjudicator's decision. 6. Ignoring Contractual Dispute Resolution Procedures: Many construction contracts include specific dispute resolution procedures, such as mediation or arbitration, before adjudication. Ignoring these procedures or failing to follow them can result in procedural challenges during adjudication. 7. Inadequate Preparation and Presentation: Inadequate preparation of your case, including gathering evidence, preparing witness statements, and formulating arguments, can weaken your position during adjudication. Similarly, ineffective presentation of your case to the adjudicator can hinder your chances of success. 8. Ignoring Adjudicator's Directions: Failing to comply with the adjudicator's directions or orders can result in adverse consequences, including cost penalties or unfavorable decisions. 9. Failure to Consider Costs and Risks: Construction adjudication can be costly and time-consuming. Failing to assess the potential costs and risks associated with adjudication, including legal fees and potential outcomes, can lead to unexpected financial burdens and unfavorable results. 10. Lack of Communication and Cooperation: Poor communication and lack of cooperation between parties involved in adjudication can hinder the resolution process and escalate tensions, ultimately leading to less favorable outcomes. #construction #Law #adjudication #contracts #arbitration

Adjudication in SA’s built environment is resulting in more settlements between parties during this process, according to MDA Attorneys - Construction & Technology Law Specialists’ annual adjudication survey results for 2023. The survey has revealed a new trend with settlements reached in just over 13% of the law firm’s adjudications during the period compared to zero in previous years: https://bit.ly/3znTo9m #adjudication #builtenvironment #legal #industryinsights #construction #propertydevelopment #constructionindustry #infrastructure #contractors #realestateinvestment #lawfirm #propertyowners #legaldisputes #realestateinvestment

Adjudication in SA’s built environment is resulting in more settlements between parties during this process, according to MDA Attorneys - Construction & Technology Law Specialists’ annual adjudication survey results for 2023. The survey has revealed a new trend with settlements reached in just over 13% of the law firm’s adjudications during the period compared to zero in previous years: https://bit.ly/3znTo9m #adjudication #builtenvironment #legal #industryinsights #construction #propertydevelopment #constructionindustry #infrastructure #contractors #realestateinvestment #lawfirm #propertyowners #legaldisputes #realestateinvestment

CRYSTALLIZATION OF DISPUTE IN CONSTRUCTION ADJUDICATION IN UK here are some specific points to consider when adjudicating a dispute in a construction contract in the UK to assess the crystallization of the dispute: 1. Notice Requirements: Determine whether the party initiating the adjudication has complied with any notice requirements specified in the contract or mandated by law, including the timing and content of the notice. 2. Scope of Dispute: Define the specific issues in dispute and ensure they fall within the scope of the adjudicator's jurisdiction as defined by the contract or relevant legislation. 3. Document Review: Review relevant contract documents, including the construction contract, specifications, drawings, change orders, correspondence, and any other pertinent documents to understand the background and evolution of the dispute. 4. Communication History: Analyze the communication history between the parties to identify when the issues in dispute were first raised, how they have been articulated, and any attempts at resolution or negotiation. 5. Claims and Counterclaims: Evaluate the claims and counterclaims put forward by the parties, ensuring they are clearly defined, supported by evidence, and relate to the issues in dispute. 6. Legal Basis: Assess the legal basis of the claims and counterclaims, including any breaches of contract, statutory obligations, or other legal principles relevant to the dispute. 7. Evidence: Consider the evidence presented by both parties, including witness statements, expert reports, site records, photographs, and any other relevant documentation or testimony. 8. Quantification of Claims: Determine the quantification of each party's claims, including any calculations of damages, additional costs, or other financial impacts resulting from the dispute. 9. Time and Cost Impact: Evaluate the time and cost impact of the dispute on the construction project, including any delays, disruptions, or additional expenses incurred as a result of the issues in dispute. 10. Legality and Procedural Fairness: Ensure that the adjudication process adheres to the principles of legality and procedural fairness, including giving both parties a reasonable opportunity to present their case and respond to the other party's arguments. By considering these points, an adjudicator can effectively assess the crystallization of a dispute in a construction contract in the UK and make a fair and informed decision based on the merits of the case. #construction #contract #law #dispute #arbitration #administration #project #management #adjudication #CRYSTALLIZATION #ukconstruction #uk

Adjudication Ireland: Low Value Disputes Procedure Assessment and Determination being carried out by Cathal Ryan Following a workshop facilitated by the Construction Contracts Adjudication Service in July 2022, a Working Group has been developing a Low Value Disputes Procedure (“LVDP”) to support the application of adjudication in Ireland. The key objectives of the LVDP are to set out a streamlined adjudication procedure for low value disputes, to help ensure that the Adjudicator’s fee is commensurate with the disputed amount, and where desired to offer certainty as to how much the Adjudicator may charge the parties for making an Adjudicator’s Decision. As the penultimate stage of LVDP development, the LVDP Working Group has commissioned Mr Cathal Ryan to undertake an independent assessment to determine the appropriate figures to be included in the LVDP Schedule B (capped fees), Schedule C (capped hours), and Schedule D (nomination fee). Earlier today, the webpage <lvdp.ie/research> was published, and which Mr Ryan is using to promote his Survey to obtain the opinions of those who are likely to be affected by the LVDP. The Survey will be live for a 4-week period, ending on Thursday 24 October 2024. As Chair of the Working Group, I encourage you to promote awareness of the URL <lvdp.ie/research>, as widely as possible. 

How much does adjudication cost? We get asked this question a lot, and as cliché as it is to reply with another question, such as “How long is a piece of string?”, it’s accurate. Adjudication costs vary depending on the size and complexity of the dispute. However, so as not to send you on your way with no new knowledge, allow us to explain the main aspects of the overall cost of adjudication: 👉Your own costs – Whether successful or not both parties bear their own costs unless the parties have otherwise agreed to cover those costs. These costs depending on the complexity of the dispute may include: 🟢The company's own 🟢The lawyers 🟢Consultants 🟢External witness 👉The cost of the adjudicator – The rates and conditions of your adjudicator will usually be issued at the outset of the adjudication. Your adjudicator has the power to decide which party is liable to pay the adjudicator fees – often, they order the unsuccessful party to pay the adjudicator fees. According to the Adjudication Society’s latest statistic, the median cost of an adjudicator’s fee is between £12,001 and £14,000. Other research suggests that the average total fee per adjudication is £8,878. It's important to note that while the expense of adjudication depends on the value and complexity of the dispute, adjudication is often more cost-effective than arbitration. If you’re looking for cost-effective adjudication support or assistance, reach out to the Nexus Consult team today: 📞 +44 (0) 345 053 1627  📞 +971 (0) 52 895 4987  📧 info@nexusconsult.co.uk 💬Or send Scott Coulton a DM #NexusConsult #Adjudication #Construction #DisputeManagement 

PRE ADJUDICATION PROTOCOL IN ACCORDANCE WITH THE ACT? If a construction contract governed by the UK's construction Act, attempted to prevent a party from giving notice at any time of intention to refer a dispute to adjudication, then that will be unenforceable, and the contract mechanism will be replaced by the Scheme for construction contracts. This is clear from inter alia, s108 of the Act which states, "(1) A party to a construction contract has the right to refer a dispute arising under the contract for adjudication...For this purpose “dispute” includes any difference... (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" But there is nothing in the Act, so far as I can see, which stops a contract from 1. allowing/enabling a party to give notice at any time of its intention to refer a dispute to adjudication AND 2. making the party separately liable to the other in the event that it does so without first going through prescribed pre adjudication protocols (for example a confidential 8 day discussion/negotiation period). It's up to the referring party to elect whether to refer immediately or not. It can choose to either: A. refer immediately at any time, in which case the adjudicator's decision will be respected and enforceable (as required by the Act), however the other party (whichever party that is) will have a separate cause of action against the referring party for breach if it can demonstrate a loss (and the adjudicator's decision might find for the non-referring party on fees or possibly costs as a result of breach of the pre adjudication protocols). Crucially, there is no question of a jurisdiction or natural justice issue (on account of this matter) should the referring party decide to avoid the pre adjudication steps. The adjudication will proceed and the decision will be enforceable. B. go through the contractual pre adjudication protocols before referring, in which case the decision will still be respected and enforceable, and the other party will have no separate cause of action. There is no wording in the Act or the Scheme which appears to me to expressly prohibit this. The arrangement enables a party to give notice at any time of his intention to refer a dispute to adjudication, if he chooses to do so. It also complies with the overall intention of the Act, by reducing adversarial disputes and encouraging collaborative and expedited settlement. I've drafted this in the form of amendments to JCT16SBC in my paper yesterday.

🏗️ We are excited to launch our next article series exploring the use of adjudication to resolve construction disputes. 🔨 In our first article, we introduce the basics of adjudication and the types of disputes can be adjudicated. #adjudication #constructionlaw

Following on from our recent arbitration series, is our new series on adjudication under the Construction Contracts Act. We've been seeing an uptick in adjudications recently, so it's timely to reflect on the adjudication process, its benefits and potential uses. In the first article of our series, we comment on some of the basics: what adjudication is, when to use it and why. In future installments we'll track through the adjudication process, and comment on where we see the future of adjudications.