When a party is unhappy with an adjudicator's decision they really have two options:
- Challenge Enforcement of an Adjudicator's Decision - When a Decision is issued, if the paying party does not pay, then enforcement proceedings require to be raised. These proceedings will be in court. If the court enforces the decision then the paying party will require to make payment. If the court does not enforce the decision, the decision will become void.
- Final Determination - when either party are unhappy with the decision, and there are no grounds to challenge enforcement the only option is to seek to have the matter finally determined by the court (or if the contract provides, arbitration). These proceedings are not an appeal but instead a full rehearing of the claim. In the interim the adjudicator's decision is unfortunately binding and the adjudicator's decision requires to be paid pending the outcome of any final determination proceedings.
Care should be taken to review contract terms as some contracts require a party who is unhappy with an adjudicator's decision to issue what is known as a Notice of Dissatisfaction. This is a notice which sets out that the party is dissatisfied with the decision and intends to raise proceedings to have the dispute finally determined. This requirement is most commonly found in the NEC form of contract, which requires a Notice of Dissatisfaction to be issued within 4 weeks of the decision, but even if the contract does not require it, it is good practice to issue such a notice.
Lastly, where a party does not agree with a decision they require to reject the decision in full. They should not accept and reject the decision at the same time. For example if a party wishes to ask an adjudicator to correct an issue with the decision under the slip rule but also challenge the enforcement of the decision, they should sufficiently reserve their rights to challenge the decision when making the request for the correction to be made. If they do not do so it could be argued that they have accepted the decision as valid. This is known as the doctrine of approbation and reprobation.
Next week we will look at issues surrounding enforcement of the adjudicator's decision in more detail. 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.