Responding to an adjudication
(July 2025)
Recognise the Warning Signs and Prepare Early
Early Warning Signs
Adjudications rarely arrive without warning. Be alert to these key indicators that an adjudication may be imminent:
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Letters providing a limited period to reply;
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References to "crystallisation" or "deeming a dispute to have arisen";
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Ominous silence following a Payment Certificate or Pay Less Notice, and / or
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A distinct change in letter writing tone (often indicating a change in author).
Proactive Preparation
Rather than adopting the "ostrich approach", use this valuable time to prepare:
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Instruct or line up experts who may be required
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Compile supporting documentation for key positions
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Locate and brief key witnesses to begin documenting their recollections
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Continue commercial discussions to understand the other party's position
Jurisdiction Challenges: Your First Line of Defence
Crystallisation Issues
Has a dispute actually crystallised? Consider the Beck Interiors case where a claim sent before Easter weekend and adjudication commenced immediately after was deemed insufficient time for crystallisation.
Proper Appointment
Has the adjudicator been appointed under the correct rules and by the correct Nominating Body? Any irregularities could invalidate the process.
Contract Validity
Is there a right to adjudicate? Verify whether a construction contract exists between the parties and whether the subject matter is exempt from statutory adjudication provisions.
​If you identify jurisdiction issues, raise them clearly and promptly. Should the adjudicator decide to continue regardless, ensure you reserve your rights throughout the entire process.
Managing Timescales and Natural Justice
Standard Response Periods
Typically, respondents are granted between 7 and 14 days to produce their Response from the date of the Referral Notice. The NEC Form helpfully provides a 14-day period, which is generally allowed by adjudicators for all but the simplest cases.
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​When facing particularly complex or voluminous claims, consider raising natural justice concerns if the standard period would make producing a comprehensive Response unfeasible.
Adjudicator's Role
As highlighted in Bovis Lend Lease Ltd v Trustees of the London Clinic [2009] EWHC 64 (TCC), courts expect adjudicators to decline appointments where justice cannot be done due to time constraints, particularly in cases of deliberate "ambush" tactics.
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Experienced adjudicators typically guide parties toward agreeing sensible timetables for complex claims where possible.
Available Defences: Know Your Options
General Rule
A respondent can raise any defence, including those not previously raised, and the adjudicator will generally have jurisdiction to consider it.
Payment Notice Requirements
A valid Payment Certificate and/or Pay Less Notice must have been issued where the respondent seeks to open up the underlying interim account. Without effective notices, a "smash and grab" adjudication should succeed.
Relevance to Dispute
Defences must be relevant to the dispute referred. If only specific parts of an account are referred, the respondent cannot bring unrelated sections into consideration unless directly relevant to whether payment is due.
The Global Switch Estates Case Guidance
The case of Global Switch Estates 1 Limited v Sudlows Limited [2020] EWHC 3314 (TCC) provides essential clarification on permissible defences. While a referring party can confine a dispute to specific parts of a wider dispute, a responding party is entitled to raise any properly arguable defences to rebut the claim without widening the adjudication's scope.
Structuring an Effective Response
Strategic Approach
Your Response is your primary opportunity to present your case in writing. Rather than providing a line-by-line rebuttal, identify general principles and focus on key points to effectively wrestle the agenda back from the referring party. ​​
Incorporate key conclusions from expert reports into the front-end document and highlight crucial witness evidence. For variation claims, develop focused narratives that directly address the claims and focus on where the money is!
Clarity is Key
Remember that the adjudicator has not lived through the project as the parties have. Create a clear, easy-to-understand document that makes your position readily accessible.​
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​Provide well-organised supporting documentation and user-friendly spreadsheets to facilitate calculations. The adjudicator will be under time pressure just as the parties are—make their job easier by presenting your case logically.
Structuring an Effective Response
Team Availability
Ensure your entire team is fully available during the Response period. Team members may need to pause their day jobs to assist with the adjudication, particularly for high-value disputes.
Internal Deadlines
Set and enforce tight internal deadlines as soon as the Notice of Adjudication lands. Confirm these when the Referral arrives and ensure strict adherence to maximise the impact of your evidence in the final Response.
Expert Support
For extension of time claims, engage delay experts early. While they can lighten the burden, remember that factual evidence and witness statements remain essential to support the expert analysis.
Focus on Value
For variation claims, focus your efforts on where the money is. Identify the highest-value items and concentrate your resources there for maximum effect.
Remember that adjudication success often hinges on preparation and prioritisation. Allocate your resources strategically to address the most significant aspects of the dispute while ensuring comprehensive coverage of all relevant defences.
Consider the Offensive Strategy
Sometimes the best defence is a good offence. If you are well-prepared, consider commencing an adjudication yourself to wrestle control back from the other party.
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This approach can be particularly effective when:
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You have strong documentary evidence supporting your position;
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The other party's claim has significant weaknesses;
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You can define the dispute more favourably to your position, and
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You have more resources available to dedicate to the process.
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By initiating proceedings, you gain the advantages of defining the dispute, setting the timetable, and controlling the initial narrative—all valuable tactical benefits in the adjudication process.
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