Received a Notice of Adjudication: what should you do in the first 24 hours?

Why the first 24 hours matter

Statutory construction adjudication is deliberately fast. The legal and factual issues may be substantial, but the procedural timetable is compressed. Early decisions about jurisdiction, document control and who will prepare the factual and technical evidence can therefore affect the whole response.

The key point is not to produce a full defence on day one. It is to prevent avoidable mistakes while creating a reliable route to the response.

1. Preserve the Notice and prove when it was served

Keep the Notice of Adjudication in the form in which it arrived, including the email, delivery metadata or other evidence of service. Record the date and time. Service can affect the appointment and referral timetable and may also be relevant to jurisdiction.

Under the Scheme for Construction Contracts, the Notice should briefly identify the nature of the dispute, where and when it arose, the redress sought and the parties. The actual contractual adjudication provisions may differ, so both the Notice and the contract need to be read together.

2. Obtain the complete contract, not just the order form

Locate the signed contract, order, subcontract, schedules, amendments, incorporated standard terms and any later agreements that changed the dispute-resolution mechanism. Construction contracts are frequently assembled from several documents. The adjudication clause and the substantive provisions relevant to the dispute may be in different places.

If there is an argument about whether a construction contract exists, what terms were incorporated, or which adjudication procedure applies, that can become a jurisdiction issue.

3. Identify the dispute that had crystallised before the Notice

Adjudication is not simply a mechanism for presenting a new claim for the first time. The scope of the dispute referred matters. Pull together the claim, response, payment notices, correspondence and meeting records that show what had been asserted and rejected or not admitted before the adjudication started.

Do not assume the description in the Notice is necessarily the final word on scope. Compare it with the dispute that had actually developed between the parties.

4. Check appointment and referral deadlines immediately

Section 108 requires the contractual procedure to provide a timetable with the object of securing appointment of the adjudicator and referral within seven days of the Notice. The adjudicator must ordinarily decide within 28 days of the referral; the referring party can consent to an extension of up to 14 days, and both parties can agree a longer period.

Under the Scheme, the referral is to be sent not later than seven days after the Notice and should be accompanied by the contract and the documents on which the referring party relies.

5. Preserve jurisdiction objections without derailing the merits response

Potential jurisdiction issues may include whether the adjudicator was appointed under the correct procedure, whether there is a qualifying construction contract, whether the dispute had crystallised, whether the adjudicator is being asked to decide something outside the dispute referred, or whether the same dispute has already been decided.

A respondent should take advice on how and when to reserve its position. Simply raising the word “jurisdiction” is not a substitute for identifying the actual objection, and a jurisdiction strategy should not prevent preparation of the substantive response.

6. Build a response file around the issues, not around the project archive

Start with an issue list. For each issue, identify the contractual provision, key fact, supporting document, witness, valuation/time consequence and the referring party's position. This is usually more useful than uploading thousands of project emails and hoping the answer can be found later.

Typical priority records include payment applications and notices, valuation sheets, programmes, instructions, variation records, meeting minutes, contemporaneous site records, expert/consultant material and the correspondence by which the dispute crystallised.

7. Decide what not to do

• Do not make substantive admissions in hurried correspondence simply to appear responsive.
• Do not abandon a possible jurisdiction point without considering it.
• Do not assume a later extension will be granted.
• Do not send uncontrolled volumes of confidential material before the legal team has identified what is relevant.
• Do not allow commercial negotiations to distract from the formal adjudication timetable.