UK: Guidance for Adjudicators

Last Updated: 31 March 2003

The Housing Grants, Construction and Regeneration Act 1996 (the "Construction Act") has been the most significant piece of legislation to affect the construction industry for a number of years. Since its implementation in May 1998 statutory adjudication has become the principal means of dispute resolution within the industry, but it has not happened without complaint. There have been over 100 cases in the courts led by unhappy parties referring "unsatisfactory" decisions.

Parties have sought to frustrate the enforcement of awards in order to prevent paying, by attacking the jurisdiction of adjudicators and their conduct, alleging bias, prejudice and conflict of interest. In the majority of cases the courts have upheld the decisions of the adjudicators, but in so doing have taken the opportunity to give guidance on the operation and mechanism of adjudication under the Construction Act. Notwithstanding this, the 28-day timetable and the tactics of certain parties have left the industry in no doubt that the process amounts to "rough justice".

This led the industry to call upon the Government to intervene, with parties trying to ambush each other into an adjudication, using bullying tactics and keeping relevant information to themselves, right up until the appointment of an adjudicator. Rather than intervene with new legislation, the Government chose to support the Construction Umbrella Bodies’ Adjudication Task document "Guidance for Adjudicators" (the "Guidance"). The purpose of the document is to highlight issues which arise in adjudications under the Construction Act, and to provide guidance for adjudicators in the form of suggestions not rules. It is not meant to be comprehensive or to be treated as legal advice, nor is it binding.

The Guidance spans seven subjects, natural justice (procedural fairness), challenges to jurisdiction, intimidatory tactics, unmanageable documentation, reasons for the decision, accidental errors or omissions and the parties’ costs. Each section contains an explanation of the issue and the law and guidance for adjudicators.

Natural Justice

Natural justice is all about ensuring procedural fairness. In a small number of cases, the courts have refused to uphold an adjudicator’s decision because the adjudicator did not act fairly. The Guidance is designed to set out what fairness should mean in this context.

It requires that the adjudicator act in a manner which is free of bias, that is, the adjudicator must be impartial and act independently. It is not necessary for actual bias to occur, the real possibility of it will suffice. This is in keeping with the guidance the courts have already issued, what is new is the wording of the actual guidance given to adjudicators within this section. This goes further by saying that if the adjudicator is aware of any connection, however remote, with either party he or she must notify the parties and consider refusing the appointment. This may present problems, because the size and nature of the construction industry is such that a connection will not be uncommon and it may be used by one of the parties as a tactical means of objecting to the appointment of the adjudicator and delaying the process.

The second element of natural justice is that a fair hearing should be ensured for each party. Whilst the procedural "niceties" of court proceedings are not expected within the limited adjudication timetable, (it is not necessary for example for there to be an oral hearing) the Guidance sets a minimum standard to ensure that each party has a reasonable opportunity to present its case, know what the case is against it and be in possession of all of the evidence and information that is produced against it or obtained by the adjudicator.

Challenges to jurisdiction

Once a party commences an adjudication, the only way it can be stopped is by a challenge to the jurisdiction of the adjudicator. The Guidance gives a list of examples of jurisdictional challenges and provides some useful guidance on how an adjudicator should deal with them. Essentially, the adjudicator should investigate the challenge, seek the views of the parties and make up his own mind. The risk is of course that an adjudicator who fails to follow the Guidance may well find himself subject to a challenge to his jurisdiction for such an omission. An adjudicator has no obligation to consider his or her own jurisdiction unless it is challenged.

Intimidatory tactics

Some parties use intimidatory tactics such as spurious challenges to jurisdiction or overly lengthy submissions or threats not to take part in the adjudication, or even threats against the adjudicator, just as they do before other tribunals. This type of behaviour might prejudice the independence of some adjudicators pressurising him or her to follow a course of action desired by one of the parties and is clearly unacceptable. The Guidance suggests that the adjudicator should recognise such tactics early on and counter them fairly, remembering who is in control of the procedure.

Unmanageable documentation

Given the limited timetable parties sometimes provide disproportionate quantities of documents to the adjudicator and the other party. Not only can this overwhelm the adjudicator, making it difficult to produce a decision within the time limit, but it can also make him or her vulnerable to a challenge for not considering all relevant material. The Guidance emphasises that the adjudicator is in control of the procedure and can limit the length of documents provided to him. It also states that an adjudicator is under no obligation to take into account all information submitted to him, and the responsibility for judging what is or is not relevant remains with the adjudicator. Some ambiguity remains therefore on how this decision process should be carried out.

Reasons for the decision

An adjudicator is required to give reasons for his or her decision under the Scheme if asked. Sometimes the parties make this request at a late stage within the timetable, and the Guidance suggests setting a date at the outset by which any request to give reasons must be made.

Accidental errors or omissions

Accidental errors or omissions in an adjudicator’s decision may be corrected. It is not uncommon for an adjudicator to be unsure as to what extent he or she has the power to correct an error and the Guidance by analogy to section 57 of the Arbitration Act 1996 clarifies this. An adjudicator may correct his award to give true effect to his first thoughts and intentions, but cannot change the substantive decision because he has second thoughts or intentions.

A number of areas in the Guidance remain vague, but on the whole it is a very useful document. It generally refers to adjudication conducted under the Scheme in England and Wales, but it is intended to be of use elsewhere or when contractual (as opposed to statutory) adjudication procedures are employed.

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.