22/07/2016
Originally introduced as a quick, cheap way for parties involved in a construction dispute to resolve the matter and get back to work without anyone going into insolvency, adjudication has grown into a process for resolving even the most complex of disagreements, requiring evidence to back up assertions made and facts presented.
The issue of evidence in adjudication proceedings can be tricky. Unlike litigation, there are no hard and fast rules on what can be presented and how this should occur. In addition, adjudication has become far more complex than is likely to have been the original intention of Sir Michael Latham, when he delivered his report in 1994.
Introduced in 1998, adjudication was designed to provide contractors and subcontractors in the construction industry with a quick, cheap way of resolving disputes, and avoid insolvency. In the last 18 years there has been much case law and a general push by the Government and Judiciary to keep disputing parties out of the courts, therefore adjudication is often used for complex cases which can require expert evidence.
The general rules of evidence in adjudication
As a general rule, there are no strict criterion as to the format or type of evidence which must be provided in an adjudication to resolve a construction dispute; although an adjudication which is not governed by the Scheme for Construction Contracts may have its own provisions for the production of evidence.
Adjudicating parties should aim to set out their case to the adjudicator as clearly and succinctly as possible. Too much material can obscure the real issues. But this needs to be balanced. Complex issues often require technical and expert evidence. If too little material is contained with the Referral Notice or Response, the result can be an unsatisfactory drip-feed of further information which disrupts the adjudication process.
The parties would also be well-advised to supply all relevant documents in a paginated bundle(s), with tabs separating out the relevant documents, and to include cross-references within their Referral Notice or Response. The clearer a party’s case, and the evidence substantiating it, the easier the adjudicator will find it to follow.
Disclosure of documents
Adjudication proceedings are not bound by the rules of disclosure contained in the Civil Procedure Rules. However, the adjudicator can ask parties to provide him or her with documents they feel need to be reviewed before a decision is given.
Failure to produce adequate documents can lead to the adjudicator making adverse inferences, so it is imperative that you review your Referral Note and Response carefully and submit appropriate evidence to support your case and make the adjudicator’s job easier.
Witnesses
Witnesses are not a requirement in adjudication proceedings and in small disputes they should be avoided if possible. Remember, adjudication is designed to be quick and cost-effective; only use witnesses if you absolutely have to.
In the following circumstances, witness statements are appropriate:
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if there is an important dispute of fact between the parties, for example an agreement made verbally between the parties or a particular instruction not carried out
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if you wish to adduce evidence from an independent third party; if the evidence is likely to be contentious, the adjudicator is likely to give it more weight if included in a witness statement (with a statement of truth) rather than just in a signed letter
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in a large dispute, appending witness statements can be a useful way of producing the detail required, without overburdening the Referral Notice or the Response, within the tight timescales
Expert evidence
If expert evidence is required to support a party’s case, then it should be enclosed in the Referral Notice or the Response (depending on which party is relying on it).
In disputes involving a high level of technicality, the adjudicator may request a meeting with the expert witnesses so he or she can clarify specific issues.
If the question of expert evidence arises and the report is disclosed or produced only with the Referral Notice, this may have an impact on whether or not a dispute has ‘crystallised’ and thus whether the dispute can yet be referred to adjudication. If you are the referring party, make sure the expert evidence is disclosed to the other side before the referral if it is to be relied on in the adjudication, to avoid jurisdictional challenges.
In summary
Evidence in adjudication proceedings is becoming increasingly common as the process is used for more complex disputes. To avoid escalating costs and litigious challenges to the adjudicator’s decision, ensure you have a clear grasp of the procedure that applies to submitting evidence in adjudication proceedings.
Fisher Scoggins Waters are a London based law firm who specialise in construction, manufacturing and engineering law. If you would like more information about the adjudication process, please phone us on 0207 993 6960.