How Do I Defend or Respond to a Notice of Adjudication?

If you receive a Notice of Adjudication, you must act promptly. The order you do things in also matters.

Adjudication offers a fast and cost-effective dispute solution helping keep projects on track with the option to challenge the adjudicator’s decision later using arbitration (if applicable) or litigation. Here’s how to reserve your position, structure your response, and use the process to your advantage.

We act for parties involved in adjudication in the construction industry. If you’ve received a notice and want to know what to do next, contact our specialist construction litigation solicitors. Our team have decades of experience and would love to assist you.

Key Takeaways

• Adjudication is a quick and cost-effective way to resolve disputes in the construction industry.
• A Notice of Adjudication requires fast action to avoid prejudicing or permanently waiving important rights.
• Adjudication has a prescribed timetable which means the period from notice to decision can be as little as 28 days.
• Specialist legal advice helps avoid common pitfalls and costly errors.

Why Reserving Jurisdiction Comes Before Anything Else

Despite tight adjudication timescales, the first thing you must do is reserve your position on jurisdiction. Skip this, and you’ll waive vital protection and may lose the option to challenge the decision later. We’ve set out each stage of the adjudication process in full, but getting the reservation right is where most respondents go wrong. You will need to make a specific reservation of rights, if there are grounds for a jurisdictional challenge, as general reservations of rights are usually ineffective. This means that you need to understand the grounds for a specific jurisdictional challenge at this stage or you may inadvertently waive your rights. 

Checking the Adjudicator’s Jurisdiction

There are several reasons why an adjudicator may not have jurisdiction, these include (but are not limited to):

• The absence of a qualifying construction contract
• The dispute hasn’t crystallised
• The adjudication is a repeat of an earlier dispute which already has a decision

If the adjudicator doesn’t have jurisdiction, then any decision is null and void and unenforceable.

Identifying Natural Justice Concerns

Alongside jurisdiction, the other fundamental doctrine of adjudication is natural justice: ensuring a fair hearing with no bias, including any personal interest or prejudice on the adjudicator’s part. Natural justice concerns focus on procedure. An error in process may mean you weren’t given a fair hearing, and the adjudicator must not have a personal interest in your dispute.

How to Reserve Your Position Without Waiving It

Reserve your position the right way to avoid waiving your right to challenge the decision later. Raise objections early; they should be clear and specific, not general statements, which a court may rule ineffective. Fail to reserve your position, and a court will treat you as having waived your right to resist enforcement and accepted the adjudicator’s jurisdiction.

Deciding Whether and How to Participate

The Risks of Non-Participation

The most common reason for non-participation is a belief that the adjudicator lacks jurisdiction. But this carries significant risk: the adjudicator may still find in favour of the referring party, and a court may enforce that decision anyway. Not every jurisdictional challenge succeeds, and courts take a dim view of objections raised too late or without proper grounds.

If you choose not to participate, you must still reserve your position so you can raise jurisdictional challenges at enforcement. But courts are often reluctant to entertain challenges raised for the first time at that late stage, so participating under reservation of rights (covering all bases while protecting your right to challenge procedural irregularities or bias) is usually the safer option.

Structuring Your Response to the Referral Notice

Getting the structure of your response to the referral notice right from the outset shapes how much ground you can defend later.

Responding to the Facts and Contractual Position

The window to respond is limited, so act quickly: the Scheme for Construction Contracts gives you seven days from receiving the referral notice to respond. Start reviewing the claims as soon as they arrive.

Stick to the issues raised in the Referral Notice; the wider contractual position only matters where it bears on the adjudicated dispute.

Keep your response concise, and repeat any jurisdictional objections at this stage. Early legal advice will save time and help you prepare the best possible response.

Raising Your Own Cross-Claims or Set-Off

A cross-claim may form part of a set-off defence: a way to reduce or wipe out the amount claimed against you by offsetting it against a sum the referring party owes you. Cross-claims often arise from the same underlying causes of construction disputes, such as delays, defects, or payment failures, that led to the referral.

Non-payment is one of the most common triggers. If an employer has refused to pay a contractor on a related instruction, that dispute may form the basis of your set-off.

Using Expert Evidence to Support Your Response

You can use expert evidence if it’s appropriate. Adjudication runs under its own procedure rather than the Civil Procedure Rules, but adjudicators often expect experts to follow the same standards of independence set out in Part 35: the evidence should be unbiased and could include facts which detract from your position rather than support it. 

Disclose any expert evidence to the other side in good time, in line with the adjudicator’s directions, to avoid procedural or jurisdictional challenges. Given the time constraints instructing an expert early is key to defending an adjudication where expert evidence is required.

The Rejoinder: (Usually) Your Final Opportunity to Respond

A rejoinder is usually the responding party’s  last word in adjudication before the decision. This is your chance to address the referring party’s reply to your initial response. You can clarify, explain, or counter points raised in the reply but you can’t normally introduce new issues or arguments.

The Decision and What Happens Next

The time from referral to decision is typically 28 days so you won’t have to wait long. The adjudicator’s decision is described as ’temporarily binding’ meaning both parties must comply with it pending any later challenge via arbitration or litigation. For more on what this means in practice, see our guidance on the effect of an adjudicator’s decision.

Frequently Asked Questions

How Long Do I Have to Respond to a Notice of Adjudication?

You do not normally need to respond to the Notice of Adjudication directly. Instead, you would respond to the Referral Notice; although you could address aspects of the Notice of Adjudication in your Response. You usually have seven days to respond to a Referral Notice, although this can be varied by the contract. Extensions are also possible with the referring party’s agreement, but adjudicators may not grant them, so it’s best to assume you’ll need to work to the original deadline.

Can I Raise a Jurisdictional Challenge After I’ve Started Responding?

Jurisdictional challenges can be raised at any point during adjudication. Raise a challenge as soon as you become aware of circumstances that may impact jurisdiction to avoid waiving your rights. It’s common practice to include any jurisdictional challenges in your response to the referral notice or prior to issuing a response. You should generally check for any possible grounds for a jurisdictional challenge before taking any steps in an adjudication to ensure that you do not waive your rights.

What Happens if I Don’t Respond to the Referral Notice?

If you don’t respond to the Referral Notice, the adjudication process will take place without you. The adjudicator’s decision is binding unless later challenged in court or via arbitration. 

Is an Adjudicator’s Decision Final?

An adjudicator’s decision is final and binding unless and until it’s challenged in court or through arbitration (where available). Therefore, the parties must comply in the short term even if they intend to mount a challenge later. If they don’t comply, the decision can be enforced in court.

A Well-Structured Response Determines How Much Ground You Can Defend

Adjudication is an effective process but it’s essential to get your initial reservation and response right to maximise your defence and protect your legal rights.

At Helix Law, we handle adjudication responses regularly. Our specialist experience means we understand the vital importance of the initial reservation and how the structure of the response document determines how much ground you can defend.

If you’ve received a Notice of Adjudication or there’s a prospect of adjudication proceedings being commenced against you, don’t delay, speak to our specialist litigation solicitors. Our construction team act nationally and would be happy to help you.

On qualifying construction disputes, we may be able to act on a No Win, No Fee basis, subject to case assessment and our funding criteria, available on disputes typically valued over £10,000 with strong prospects of success.