Tue 08 Dec 2020

The Respondent has raised new evidence in their Rejoinder, what should I do?

The Notice of Intention to Refer and Referral set out the Referring Party's claim.  The Response should respond to the Referral and follow the same format. 

The Reply should respond to issues in the Response which were not covered in the Referral and the Rejoinder should address and respond to issues raised in the Reply.

The Reply and Rejoinder should not be used to restate the claim or defence set out in the Referral or Response. They also should not raise new arguments. 

As the Rejoinder is normally the last written submission, the Respondent will likely have the last say.  It is not unknown for the Respondent to introduce new arguments, witness evidence or documentary evidence with the Rejoinder and this practice should be avoided. 

However if this happens the Referring Party should seek the opportunity to issue a Sur-Rejoinder to respond to the new information.  The request to submit a Sur-Rejoinder should be made to the adjudicator and if the adjudicator is persuaded that new evidence has been presented then in all likelihood a Sur-Rejoinder will be allowed. 

If the adjudicator does not allow a Sur-Rejoinder, the Referring Party should reserve their position that this would be a breach of natural justice and reserve the position.  This will allow the Referring Party to raise the position in any enforcement proceedings if required.

Parties should state their arguments and vouch them clearly at the earliest opportunity in proceedings as Sur-Rejoinders only make the adjudication process lengthy and add to the costs.  Written submissions in adjudications cannot go on endlessly and the adjudicator will get to the point where they will not accept any further submissions.

Next week we will look at issues surrounding the adjudicator's decision.   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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