What Do I Do When I Receive an Adjudication Referral Notice?
If you are involved in a construction dispute and receive an adjudication referral notice, you need to act quickly. The referring party has already appointed an adjudicator and formally referred the dispute for resolution. Your response must be strategic, well-structured, and timely to protect your position.
Overview
Check Jurisdiction – determine if you have any legitimate grounds on which to challenge the Adjudicator’s jurisdiction;
Reserve Your Rights – if you intend to challenge jurisdiction at a later stage, you must make this clear from the outset to avoid any implication that you have submitted to the jurisdiction despite having grounds to challenge it;
Prepare Your Response – a detailed response supported by proper evidence is essential. Preparation must begin immediately, because often adjudication is a very quick process with only 10 to 14 calendar days being allocated for the responding party to present its side of the dispute.
How to Respond to a Referral Notice
If you intend to challenge jurisdiction later, state this in writing in your initial correspondence. It is prudent to repeat this reservation (and add any further reservations that present themselves) in all subsequent correspondence and submissions.
You should then begin preparing a substantive response to the allegations made in the Referral Notice. It is the Referring Party’s role to prove its allegations are correct on the balance of probabilities. It is not the Responding Party’s role to disprove those allegations. Your strategy for responding to the allegations might therefore involve one (or a combination of) the following approaches:
you might present an alternative factual case, setting out a positive argument in your favour about what you say really happened;
you might attack the referring party’s factual case, demonstrating why their claims are improbable and/or not supported by their evidence;
put forward legal submissions which defeat the allegations made against you even if they are factually correct.
A positive factual case is often a stronger tactical approach than simply criticising the Referring Party’s case and/or relying on the Adjudicator agreeing with your on your legal submissions. However, the amount of time and resources available will often dictate the strategy employed by the Responding Party.
Tips for Drafting and Serving Your Response
Your response must be clear, well-reasoned, and supported by evidence. It should:
address all factual and legal claims made by the Referring Party (ideally, keeping fact and law separate where possile, for clarity).
cite all relevant contractual provisions that you are relying on;
clearly explain why, and on what bases, the claim is disputed; and
include any counterclaims or cross-claims, if applicable.
You typically have between 10 and 14 calendar days to respond, although this can be as little as seven calendar days in disputes that appear to the Adjudicator to be straightforward (e.g. non-payment of an invoice). The period for a response can be extended by the parties’ agreement. Missing deadlines can significantly weaken your position.
The Referring Party has no automatic right to reply to your Response, but Adjudicators often allow further submissions from both the Referring Party and the Responding Party. Be prepared to respond to additional points raised by the Referring Party in answer to yours, but do not leave things out of your Response in the belief that you will get chance to say them later, as the Adjudicator may not give you that chance.
Conclusion
Receiving a Referral Notice is a critical moment in an adjudication. You must act fast to determine whether to challenge jurisdiction and to prepare a strong and well-supported Response. It is unusual for a Responding Party to win an adjudication without either having a competent in-house legal team, or the guidance and manpower that a law firm specialising in adjudication can bring. If you have received a Referral Notice and need quick, expert, help, contact Hamshaw today.