Tue 10 Nov 2020

Do I have to accept an adjudicator's terms and conditions?

The adjudicator's terms and conditions regulate what the adjudicator will do and the fees the adjudicator can charge.

It is obviously in the Referring Party's interest to accept the adjudicator's terms and conditions as they want the adjudicator to decide the dispute.  However on occasion a Respondent will not expressly accept the adjudicator's terms and conditions.

It has been suggested that by keeping quiet on the adjudicator's terms and conditions it could help to avoid liability for paying the adjudicator's fees.  However the courts have held that even if a party does not expressly accept the terms and conditions, if they participate in the adjudication then they will be deemed to have accepted the adjudicator's terms and conditions.

Where there may be some flexibility is if the adjudicator's terms and conditions contain provisions which are simply unworkable.  For example payment of fees on receipt of an invoice when a party's payment process requires 7 days to process payments or requiring submissions in hard copy when everyone is working from home.  In these circumstances the adjudicator should be asked if they would consider an amendment to their terms and conditions.  On the whole adjudicators are amenable to agreeing a workable solution particularly if there is a valid reason for the amendment requested. 

It should also be noted that in general adjudicator's terms and conditions are generally the same and care should be taken to look out for anything unusual.  This should be raised with the adjudicator and your solicitor should be familiar with the standard terms to expect and advise you of anything unusual.

If an adjudicator refuses to agree to make an amendment requested then consideration would need to be given to whether or not the term in question was something that could be accepted.

Ultimately if the adjudicator does not agree to change their terms and conditions, and the original terms are something which a party cannot accept, if an agreement cannot be reached on the adjudicator's terms and conditions it is almost certain the adjudicator will resign.

It should also be noted that it is almost certain that an adjudicator's terms and conditions will provide that liability for their fees will be on a joint and several basis.   This means that if one party does not pay, the adjudicator can seek payment from the other party who in turn will have to recover that sum from the non-paying party.

Next week we will look at issues surrounding jurisdictional challenges.   If you haven’t read our previous adjudication blogs they can be found here.  Our commonly used terms glossary for adjudication can be found in our week two blog.

Should you require any assistance with adjudication, we have a large and experienced construction team who regularly deal with adjudications and we would be happy to discuss the process with you. 

 

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