No Win No Fee
No Win No Fee
*Prices are quoted excluding VAT and VAT will be charged on all quoted prices
Even though Helix’s fees are fixed and no win no fee the adjudicator’s fees may be uncertain. However, as of 2019, construction adjudication just got cheaper and less risky. The Technology and Construction Solicitors’ Association (TeCSA) has launched a low-value disputes adjudication service (LVD service) for disputes up to £100,000 (excluding VAT and interest). The scheme caps the adjudicator’s fee.
If your construction contracts allow you to refer under the fixed fee scheme then it makes low-value adjudications a much more attractive proposition. The TeCSA LVD service guarantees a fixed price cap for the adjudicator’s fee on the scale below:
||Fee Cap (Excl. VAT)
|Up to £10,000
|£10,001 to £25,000
|£25,001 to £50,000
|£50,001 to £75,000
|£75,001 to £100,000
If you are considering making a referral or claim or are the responding party to referral or claim, contact Helix Law now on 01273 761990.
OVERVIEW OF ADJUDICATION IN CONSTRUCTION
The adjudication process was introduced with the UK Housing Grants, Construction and Regeneration Act of 1996, as a less formal and faster method of resolving disputes without the need to resort to expensive formal court procedures. However, increasingly construction adjudication has become more formalised, and parties must serve detailed submissions, expert reports, and witness statements.
Despite its formalisation, construction adjudication is still a quick and cost-effective way to settle contract disputes. In normal procedures, a decision is made within 28 days, unless all parties agree otherwise. A party can refer a single issue to the adjudicator by issuing a notice of adjudication, which can prevent responding parties from relying on a counterclaim defence.
Adjudicator decisions can be enforced by a summary judgment process in the Technology and Construction Court. In the majority of cases, the losing party accepts the decision and does not arbitrate or litigate. Adjudication is an important tool that should be known to all construction professionals.
If you have received a notice of adjudication, there are several steps you must take. Here are the key actions and considerations you should make to resolve the case.
1. ACT QUICKLY.
After you receive a notice of adjudication, within seven days you will also receive a referral notice setting out the details of the referring party’s claim. The referral notice submissions can be lengthy and complex, and you often have just seven days to issue your response.
It is important to get legal advice from a specialist lawyer or construction consultant. Do this as soon as possible upon receiving a notice, as the time to construct a defence is limited. Your lawyer will be able to tell you whether an adjudicator will have jurisdiction over the issue. They can also answer any questions in general about the adjudication process. It is often better to use a solicitor as they will be able to carry on with enforcement and litigation if required later on and will be more aware of not compromising those claims in adjudication.
It is difficult to get extensions to a construction adjudication timetable, so contacting a lawyer after receiving a notice of adjudication quickly is essential.
Helix Law tries to answer emails and queries within an hour during working hours. Contact us now to find out how we can help.
2. DOES THE RIGHT TO ADJUDICATION EXIST?
By issuing a notice of adjudication, the referring party has exercised their statutory or contractual right to refer a dispute to an adjudicator. However, before engaging in the process you must decide whether this right is justified. This is where a specialist lawyer can advise that you should reserve your own right to challenge an adjudicator’s jurisdiction if you are unsure. The more specific your reservation is, the more likely it is to be effective.
You should do this by putting your challenge to the adjudicator’s jurisdiction in writing right away. If the appointment is accepted by the adjudicator, they will give a binding decision within 28 days of the referral notice unless the referring party accepts an extension to the time limit. The decision is binding unless and until it is overturned by litigation or arbitration. Until it is, the parties must comply with it unless they can challenge the adjudicator’s decision.
3. CHALLENGING AN ADJUDICATOR’S DECISION ON ENFORCEMENT:
Once the adjudicator has made their decision, it is unlikely that the court will not uphold and enforce it – even if it’s wrong. The philosophy of adjudication is that it’s a quick and easy resolution. Therefore, their decisions should be paid or performed by the responding party fast. This means you must act upon the decision before challenging it. The philosophy is pay up and argue later.
4. THERE ARE ONLY TWO WAYS TO CHALLENGE AN ADJUDICATOR’S DECISION ON ENFORCEMENT.
Arguing that they made an error of fact of law is not a valid ground on which to challenge the decision. The two ways are:
- To argue that a breach of natural justice has occurred;
- To argue that the adjudicator does not have jurisdiction.
If a challenge cannot be made, the responding party must pay or perform it before beginning arbitration or court proceedings in an attempt to claim back the money. It is only in rare conditions that parties might be able to commence and win a court procedure before they must pay the decision. Alternatively, there may be a chance to stay the enforcement of an adjudicator’s decision.
5. PAY NOW, ARGUE LATER.
This is the main rule of adjudicator’s decisions. Many people fall foul of this rule and end up paying significant sums for the referring party’s legal costs because they have refused to pay the decision. If you refuse to pay, the referring party can apply to have the decision enforced. They can add a claim for the costs of doing so, which can amount to £5,000-£15,000.
6. CHALLENGING AN ADJUDICATOR’S DECISION IN PROCEEDINGS:
If you think the adjudicator got it wrong, you can commence court proceedings or arbitration (depending on what your contract says) to get a final and binding decision on the issue in dispute. This will trump the adjudicator’s decision but may take up to 2 years to obtain.
7. GET EXPERT ADVICE.
If a challenge is to be maintained against the decision’s ability to be enforced, then it must be raised early in the process. You must also be careful to not waive it by deed or by word.
This means that from the moment the notice of intention is received, everything you do could determine your rights within the process. Sometimes, the referring party does not actually have the right to commence construction adjudication under the legislation or contract. If you participate then, without reserving your right to challenge the adjudicator’s jurisdiction, you could actually validate an adjudication that was initially invalid.
This is why it’s imperative to secure expert legal advice from Helix Law’s specialist solicitors. If you make a wrong move, you could end up needlessly losing a case.
This information is designed to make you aware of the value of gaining early legal advice. It should also emphasise the need to act fast when served a notice of adjudication. Time limits are often short and inflexible.
Helix Law can fully explain the process and guide you through proceedings. Contact us today for free initial advice.