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Adjudication is a statutory procedure whereby a Party refers a dispute to an independent and impartial third Party to adjudicate or decide an issue or issues in dispute in a short time frame.  Adjudicators are experts in their chosen field.

The advantage of Adjudication is that the Parties will have a decision from a suitably qualified Construction Professional within 28 days of first referral which may be extended to 42 days at the request of the referring Party. However, the Parties may agree a longer timeframe themselves if they consider that the dispute is too complex to be correctly decided within the above-noted time frame. The process in the UK is temporarily binding upon the Parties and the Adjudicators decision is enforceable in the Courts. An adjudicator’s decision may only be overturned in Arbitration or Litigation or alternatively, by the subsequent Agreement of the Parties.

Adjudication has been very successful in the United Kingdom with a success rate in the order of 95% and as a consequence has adversely affected the number of Construction Arbitrations taking place.

The popularity of Adjudication is due to the speed of decision making by an independent third party in circumstances where the adjudicator’s decision is binding. This has resulted in a real improvement in cash flow in the UK’s Construction Industry with dissatisfied Parties having to pay up promptly and argue later.   

Statutory Adjudication applies in relation to Construction Disputes in the United Kingdom (UK) under the Housing, Grants, Construction and Regeneration Act, 1996 (“HGCRA”) which introduced Statutory Adjudication in the Construction Industry in the UK in 1998.

Part 2 of this Act has been amended by Part 8 of the Local Democracy, Economic Development and Construction Act, 2009 to improve payment practices and dispute resolution in the Construction Industry in the UK and which came into force in England & Wales on 1st October, 2011 and in Scotland on 1st November, 2011.

As the Construction Contracts Bill 2010 has not been enacted as yet, there is currently no Statutory Adjudication in relation to Construction Contracts in Ireland. 

Brian M. O’Connor possesses expertise in Arbitration as both Client Representative and Arbitrator which is readily transferable to Adjudication, as Statutory Adjudication in Ireland when it arrives will also be supervised by the High Court. Procedural matters will have to be very carefully dealt with by the Adjudicator and particularly in respect of two matters which featured extensively over the last 15 years in the U.K., namely jurisdictional matters and matters of fair procedure / natural justice.

Brian M. O’Connor is knowledgeable in the Construction Contracts Bill and the UK Acts and has given a seminar to the Chartered Institution of Civil Engineering Surveyors and the Institution of Civil Engineers (Irish Branch) on Statutory Adjudication in the UK and the Construction Contracts Bill 2010 and has been active in issuing written observations and suggestions  to improve and strengthen the Bill to both Senator Feargal Quinn (who presented the Bill in the Seanad by way of a Private Members Bill) and also to Minister Brian Carey the Government Minister given responsibility for its refinement and guidance through the Irish Parliament.   

Statutory Adjudication is currently not available in Ireland as there have been significant delays in enacting the Construction Contracts Bill, 2010. While the Bill is modelled on the UK “HGCRA” the Legislature is proposing to make Adjudicator’s decisions non-binding, which would regrettably defeat the whole purpose of the ACT.

It was hoped that the Act would be enacted prior to the Summer 2012 Dáil recess but this has not transpired and the Irish Construction Industry awaits the outcome of the final stages of the Bill in the Autumn / Winter of 2012.