What adjudication provisions must a construction contract include?

The Construction Act requires every construction contract to give parties the right to refer disputes to adjudication “at any time.” To comply, contracts should include:

• A clear right to adjudicate: Either party must be able to refer a dispute to adjudication whenever they choose, without restrictions.
• A compliant procedure: The contract should outline how an adjudicator will be appointed, how notices will be served, and how the process will run. While parties have flexibility, the procedure must not limit the statutory right to adjudicate at any time.
• Timelines: The Act requires adjudicators to reach a decision within 28 days of a dispute being referred (extendable by agreement). Any contractual timelines must align with this requirement.
• Supporting details: Provisions often also include rules on evidence, costs, and communication to ensure the process is efficient and enforceable.

What happens if adjudication provisions are missing or non-compliant?

If a construction contract omits adjudication provisions or includes terms that conflict with the Construction Act, the Scheme automatically applies, and it replaces the entire adjudication mechanism, not just the missing parts. This is a key distinction from payment provisions, where the Scheme only fills gaps.

Where the Scheme applies, it imposes a statutory adjudication framework that governs how the process is started, how the adjudicator is appointed, and the strict timetable and procedural steps that must be followed:

• Starting adjudication: Either party can initiate the process by serving a notice of adjudication.
• Appointing an adjudicator: If the parties cannot agree on an adjudicator, one will be appointed by a nominating body, such as an adjudicator panel or professional institution.
• Timelines: The adjudicator must reach a decision within 28 days of referral, although this can be extended by agreement.
• Prescriptive process: The Scheme sets out detailed rules on notices, submissions, and deadlines. If parties intended to use bespoke procedures, those will be overridden entirely.

This means that even carefully negotiated contractual processes can be displaced, leaving parties with a statutory framework they may not have anticipated.

Why relying on the Scheme can create unexpected consequences

When the Scheme replaces your bespoke adjudication provisions, it doesn’t just fill gaps – it changes the entire process. This shift can lead to practical and commercial challenges, including:

• Loss of control: Parties lose the ability to tailor the adjudication process to suit the complexity or scale of their project.
• Unexpected costs: The Scheme often involves appointing adjudicators through third-party nominating bodies, which can add cost and administrative burden.
• Operational risk: If parties assume their bespoke procedure applies, they risk serving notices incorrectly or missing statutory deadlines – mistakes that can invalidate the adjudication and lead to further disputes.
• Strategic disadvantage: The Scheme’s rigid timelines and prescriptive rules may not align with the parties’ preferred approach, limiting flexibility in managing evidence and arguments.

In short, relying on the Scheme can introduce uncertainty and complexity where clarity was intended. Ensuring compliance at the drafting stage is the simplest way to avoid these pitfalls.

How we can support you

Adjudication provisions shape how disputes are resolved and getting them wrong can derail your project. The Construction Act makes them compulsory, and if they’re missing, the Scheme takes over, often creating uncertainty and additional cost. The safest approach? Draft clear, compliant adjudication provisions from the outset.

If you need help reviewing or updating your contracts, we can guide you through the process to ensure compliance and reduce risk.