This Practice Note explains what a Referral Notice (sometimes referred to simply as a ‘Referral’) is and sets out what it should contain. It also provides practical tips for drafting an effective Referral Notice, and considers when the Referral Notice must be served and the consequences of failing to meet the deadline for service. For a Precedent Referral Notice, see: Referral Notice for an adjudication. What is the Referral Notice? Once a Notice of Adjudication has been given, and a person has been appointed to act as an adjudicator, the dispute must be formally referred to the adjudicator. The Referral Notice is the referral of the dispute in writing to the adjudicator, and its purpose is to set out clearly and concisely the referring party’s case. It is, effectively, the referring party’s pleadings, evidence and submissions all rolled into one. The referring party should bear in mind that the Referral Notice is intended to be the whole of its case, and not just the opening shot. There is no guarantee that it will be entitled to put in

Produced in association with 4 Pump Court This Practice Note looks at the responding party’s defence to a Referral Notice in an adjudication—typically called the Response. The purpose of the Response is to set out clearly and concisely the responding party’s case—effectively comprising its pleadings, evidence, opening and closing submissions all rolled into one. This Practice Note considers the entitlement/requirement to serve a Response, the deadline for doing so, and issues that can be included in a Response, as well as providing practical tips for drafting it. Other helpful summaries on issues which may be relevant are available in Checklists: Key issues to consider on receipt of a Notice of Adjudication and Key issues to consider when preparing an Adjudication Response. Entitlement to serve a Response The Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) and the Scheme for Construction Contracts do not expressly provide for any response from the responding party to either the Notice of Adjudication or the Referral Notice. However, the adjudicator has a general power to issue directions relating to the conduct of the adjudication

Construction analysis: The Technology and Construction Court (TCC) enforced two decisions of an adjudicator, dismissing allegations that the decisions were made in breach of the rules of natural justice or in excess of jurisdiction. The court found that the adjudicator had been entitled to take into account an unsolicited surrejoinder submitted by the referring party. It also considered that the restriction on referring substantially the same dispute to multiple adjudications did not apply to similar disputes between the same parties, arising under different contracts.

Filed on behalf of the Defendant Witness statement of [insert initial and surname of witness] Number of witness statement: [insert number of witness statement in relation to the witness] Exhibit details: [insert initials and number of each exhibit referred to] Date on which the statement was made: [insert date] [Date of translation: [insert date]] Claim No. [insert claim number]. [IN THE HIGH COURT OF JUSTICE [BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES OR IN [insert location] OR Technology and Construction Court (KBD) between: [insert name]        Claimant/Respondent and [insert name]        Defendant/Applicant _______________________________________ [NUMBER OF WITNESS STATEMENT EG FIRST] witness statement of [insert name of witness] _______________________________________ I, [Insert full name of witness] of [insert address] will say as

Note: • this Practice Note gives specific guidance on matters proceeding in the Technology and Construction Court (TCC) under the provisions set out in CPR 60, CPR PD 60 and the TCC Guide. As these provisions are additional to the general provisions set out elsewhere in the CPR, this Practice Note should be read in conjunction with general guidance on preparing for and attending trial including that in Trial—overview which, in turn, links through to detailed guidance on specific aspects of preparing for and attending trials • shorter and flexible trials schemes—claims started on or after 1 October 2015 in the TCC may be suitable for and/or be subject to one or both of the schemes operating under CPR PD 57AB, namely the shorter trials scheme and/or the flexible trials scheme. For more information on these schemes, see Practice Notes: Business and Property Courts—shorter trials scheme and Business and Property Courts—flexible trials scheme • electronic working—for information on electronic working in the TCC, see Practice Note: TCC—starting a claim—High Court or County Court?—Electronic working and filing of documents • multi-track—all TCC

Construction analysis: The Technology and Construction Court (TCC) found that an adjudicator had jurisdiction to determine a payee’s claim for interim payment, based on either the true value of the works or a ‘smash and grab’ analysis. It rejected an argument that these different bases of claim were two separate disputes that could not be decided within the same adjudication.

The individual appointed to oversee an adjudication dispute between two parties.

An individual nominated to resolve disputes. Disputes are referred to an adjudicator who will then resolve them within a short timescale circa 28 days.

Construction analysis: The Outer House of the Court of Session enforced an adjudicator’s decision, rejecting arguments that the adjudicator had failed to consider material defences raised by the responding party, or that errors in his order for payment rendered the decision unenforceable.

Construction analysis: The Outer House, Court of Session (CSOH) found that an adjudicator had erred when, having considered in a previous adjudication that a party had not proven the amount of unliquidated damages owed to it due to late completion of the works, that with new evidence in a subsequent adjudication it was then entitled to prove and had proved that it had suffered damages in relation to the disputed sum. The decision is a rare example of the courts finding that an adjudicator had erred and did not have the appropriate jurisdiction.

Dispute Resolution analysis: Akenhead J in the Technology and Construction Court (TCC) held that an adjudicator had jurisdiction to determine a dispute as to whether there had been a settlement between two parties of the final account due under their contract. Daniel Khoo of 4 Pump Court Chambers considers the judgment and its implications.

Dispute Resolution analysis: HHJ Raeside held there was no breach of natural justice and no rules broken when an adjudicator set out directions for expert evidence and held a meeting with an expert to discuss his report; the other side had been invited but declined to attend on the basis of availability. The key consideration was that the adjudicator had acted within the power of the relevant adjudication rules which are wide in ambit as befits a non-binding determination of a dispute. In addition, the adjudicator was held to have provided a provisional view to the parties. As set out in the authorities there is a clear difference between provisional views which assist the parties and are acceptable and pre-determination of a dispute between the relevant evidence has been considered.