Adjudication & Arbitration Records

Section 1

Purpose

Adjudication and Arbitration Records are the formal procedural documents generated during dispute resolution proceedings — Notices of Adjudication, Referral Notices, Responses, Decisions, arbitration submissions, awards, and all associated correspondence and evidence bundles. Maintaining a complete and accurately organised record of all proceedings is essential: for enforcing decisions, for understanding what has and has not been decided (and therefore what remains open), for managing serial adjudications, and for advising clients on their rights following a decision.

Statutory adjudication under HGCRA 1996 is the most commonly used dispute resolution mechanism in English construction disputes. RICS Conflict Avoidance and Dispute Resolution (2024) confirms that every RICS member must understand the adjudication process, its timetable, and the effect of an adjudicator's decision. Adjudication decisions are immediately binding and enforceable in court — even if the decision is subsequently challenged in arbitration or litigation.

Arbitration under the Arbitration Act 1996 produces a final, binding, private award that is generally enforceable in all jurisdictions worldwide (under the New York Convention 1958). The QS must understand the key differences between adjudication (interim, 28-day process, challengeable) and arbitration (final, potentially months-long process, very limited appeal rights) to advise clients correctly on which route to pursue.

Section 2

Key Principles

HGCRA 1996, Section 108: right to refer any dispute to adjudication at any time; the adjudicator has 28 days from Referral Notice (42 days with referring party's consent) to reach a decision; the decision is binding until finally determined by arbitration, litigation, or agreement.
Adjudication enforcement: an adjudicator's decision can be enforced by summary judgment in the TCC; the court will enforce even a decision that may contain errors (Macob Civil Engineering v Morrison Construction [1999]); the only defences are natural justice/jurisdiction challenges.
Arbitration Act 1996: arbitration requires a written agreement; the arbitrator's award is final and binding; appeals are severely restricted (Sections 68 and 69 — serious irregularity or question of law); the award is private and confidential.
Serial adjudication: a party may commence multiple adjudications on different aspects of the same dispute (subject to not re-opening the same issue that has already been decided); the QS must track the scope of each adjudication carefully to avoid res judicata (issue already decided) challenges.
Natural justice in adjudication: the adjudicator must act fairly and not breach the rules of natural justice; common grounds for natural justice challenge include failure to consider all evidence submitted and apparent bias.
Costs in adjudication: each party generally bears its own costs in adjudication (HGCRA); the adjudicator may award costs only if the contract expressly so provides or if the parties agree.

Section 3

Practical Application

Step 1

On commencing or receiving a Notice of Adjudication: create an adjudication file immediately; record the date of service of the Notice, the appointing body, and the 28-day decision deadline.

Step 2

Prepare the Referral Notice (if referring): structure it clearly — quantum section, entitlement section, evidence bundle (tabulated, indexed, and cross-referenced); serve within 7 days of the Notice of Adjudication.

Step 3

Prepare the Response (if responding): review the Referral Notice carefully; identify jurisdictional challenges (if any) and raise them immediately in the Response; prepare a counter-quantum analysis; serve the Response within the agreed timeframe.

Step 4

Maintain a complete adjudication record: all submissions, all correspondence with the adjudicator, all evidence submitted; note any decisions on procedural applications; record the date and content of the Decision.

Step 5

After the Decision: assess whether it is enforceable (check for natural justice / jurisdiction defects); advise the client whether to comply (pay or receive payment) or to challenge; note the challenge mechanism and timeframe.

Step 6

Where the adjudicator's decision is being challenged in arbitration or litigation: preserve all adjudication records as they will be evidence in the follow-on proceedings; note the issues decided in the adjudication and the issues that are still live.

Step 7

For arbitration proceedings: prepare the arbitration file — arbitration agreement, Terms of Reference (where applicable), pleadings, disclosure schedule, witness statements, expert reports, hearing bundles, and the Award. Archive all arbitration records for the limitation period.

Section 4

Common Mistakes to Avoid

Failing to comply immediately with an adjudicator's decision even while intending to challenge it — the decision is immediately binding and enforceable by summary judgment; non-compliance exposes the client to enforcement proceedings and potential wasted costs.
Missing the 7-day deadline for serving the Referral Notice after the Notice of Adjudication — the appointment of the adjudicator is linked to the Referral Notice; failure to serve in time can allow the adjudicator's appointment to lapse.
Failing to raise jurisdictional challenges at the outset of adjudication — a party that participates in adjudication without raising jurisdictional challenges at the start may be taken to have waived those challenges.
Re-referring a dispute that has already been decided in a previous adjudication — res judicata or issue estoppel may apply; the QS must track what has been decided in previous adjudications before commencing a new one.
Poor indexing of the evidence bundle in the Referral Notice or Response — adjudicators work to very tight timescales; a disorganised bundle is at risk of having key evidence overlooked.

Section 5

APC Competency & Quick Reference

Conflict Avoidance, Management and Dispute Resolution Procedures Level 3 — adjudication procedure, HGCRA, enforcement, arbitration
Contract Practice Level 2 — contractual dispute resolution provisions, HGCRA rights, natural justice

What is the timetable for statutory adjudication under HGCRA 1996 and what are the key procedural steps?

Notice of Adjudication served on the other party. Adjudicator appointed within 7 days (by the party or nominating body). Referral Notice served within 7 days of the Notice of Adjudication. Response served within 7 days of the Referral (or longer if agreed). Adjudicator's Decision within 28 days of the Referral Notice (42 days with referring party's consent). Decision is immediately binding. Either party may enforce in the TCC by summary judgment or challenge in arbitration/litigation.

On what grounds can an adjudicator's decision be challenged?

The decision can be resisted on enforcement in court on only two grounds: (1) the adjudicator lacked jurisdiction — the dispute was not properly referred, the contract is not a construction contract under HGCRA, or the adjudicator exceeded their jurisdiction; (2) breach of natural justice — the adjudicator failed to consider submitted evidence, decided on a basis not argued by either party, or demonstrated apparent bias. Errors of fact or law in the decision are not grounds for refusal to enforce.

What is the practical difference between adjudication and arbitration for a QS advising a construction client?

Adjudication: fast (28 days), low cost, interim binding effect, decision can be revisited in arbitration/litigation; suitable for urgent cash flow disputes and straightforward quantum issues. Arbitration: final and binding (very limited appeal), private, takes months to years, higher cost, suitable for complex multi-issue disputes where a final resolution is needed; the arbitrator's award is internationally enforceable. The QS should advise clients on which route is appropriate based on the nature, value, and urgency of the dispute.

Section 6

Dispute & Claims Checklist

☐

Task

☐

Adjudication file created immediately on service of Notice of Adjudication

☐

Referral Notice served within 7 days of Notice of Adjudication

☐

Response served with jurisdictional challenges raised at outset

☐

Complete adjudication record maintained: all submissions, correspondence, Decision

☐

Client advised on compliance/challenge after Decision

☐

Issues decided in adjudication recorded — tracked for subsequent proceedings

☐

Arbitration file maintained: arbitration agreement, pleadings, disclosure, Award

☐

All dispute records archived for limitation period

Section 7

CPD Learning Outcomes

Manage the procedural requirements of a statutory adjudication — Notice of Adjudication, Referral Notice, Response, Decision — within HGCRA 1996 timetables, and advise clients on enforcement and challenge options.
Distinguish between adjudication (interim, 28-day, challengeable) and arbitration (final, binding, internationally enforceable) and advise clients on the appropriate route for different types of construction dispute.
Maintain complete adjudication and arbitration records, tracking issues decided in previous proceedings to avoid res judicata challenges in subsequent adjudications or arbitrations.

Section 8