SiteKiln gives you plain-English information, not legal advice. If you're considering adjudication, speak to a specialist construction solicitor or adjudication consultant before committing money.
# Adjudication, The Nuclear Option Most Tradespeople Don't Know About
Adjudication is basically a fast-track way to drag money out of a contractor who won't pay, without waiting years for court. It's powerful, but it's not free or risk-free.
1. What adjudication is (and why it exists)
Adjudication came in with the Housing Grants, Construction and Regeneration Act 1996 after the Latham Report -- the whole point was to keep cash flowing in construction.
People call it "pay now, argue later" -- the idea is the payer coughs up what's due now, and if they want a big argument about true value, they do that later in court or arbitration.
Any party to a qualifying construction contract can refer a dispute to adjudication "at any time".
How it compares:
- Court -- slow, formal, expensive, but final
- Arbitration -- like private court; slower and more expensive than adjudication
- Mediation -- voluntary settlement talks; no decision unless you agree
- Adjudication -- quick (usually 28 days from referral), rough-and-ready, and temporarily binding -- you pay/receive now, then can still argue in court later
There is no minimum value in the Act -- you could adjudicate over £1k -- but in reality it only makes sense once the sums get into the tens of thousands because of cost.
2. Does it apply to your job?
The Act's adjudication rules apply to "construction contracts" -- basically most building, engineering, refurbishment and trade work.
Key carve-out: contracts with a "residential occupier" (a private owner having work done on their own home) are excluded from the mandatory adjudication rules under section 106. A homeowner can agree to adjudication in the contract, but they don't get it automatically.
For you that means:
- B2B work (you working for a main contractor, developer, landlord, commercial client) -- statutory adjudication almost certainly applies
- Domestic work direct for a homeowner -- adjudication only if there's an express adjudication clause
Even if there's no written contract, if it's a qualifying construction contract, the Scheme for Construction Contracts steps in and implies adjudication rules.
3. Payment notices, pay less notices and "smash and grab"
Adjudication hooks straight into the payment regime in the Act.
Basic payment flow:
- You submit a payment application (or the contract sets payment amounts)
- The payer must give a payment notice saying what they think is due
- If they want to pay less than that notified sum, they must give a valid pay less notice by the deadline
If they miss their notices:
Section 111 says they must pay the "notified sum" (your application, or their notice if they did send one) in full by the final date for payment.
"Smash and grab" adjudication:
If they don't serve a valid payment notice or pay less notice, you can adjudicate just on the basis they missed the notices, not on the underlying value of the work. The adjudicator can decide they must pay the full notified sum, even if the work's arguably worth less.
They can later run a "true value" adjudication to try and claw money back, but only after they've complied with the immediate payment obligation.
This is where a lot of main contractors slip up -- the paperwork, not the bricks, is their weak point.
4. Step-by-step -- how adjudication actually runs
The typical process (based on the Act and the Scheme):
1. Identify the dispute. Usually: "You haven't paid my application/invoice" or "you've underpaid".
2. Notice of Adjudication (Notice of Intention to Refer). Short document: who the parties are, what the dispute is, what relief you want (e.g. "pay £25,000 plus interest"). This starts the clock.
3. Appoint an adjudicator. If your contract names an adjudicator or an Adjudicator Nominating Body (ANB), you follow that. If not, you ask an ANB to nominate one (see section 5).
4. Referral Notice. Within 7 days of the Notice, you serve a full Referral: facts, legal basis, and all supporting documents -- contract, applications, notices (or proof they're missing), emails, programme, etc.
5. The other side responds. The adjudicator sets a timetable: response, maybe reply and rejoinder. They can ask questions, request more documents, or hold a short online meeting.
6. Decision. Must be given within 28 days of the Referral, unless extended by agreement (often to 42 days). The adjudicator decides who owes what, and usually who pays their fees.
The decision is temporarily binding -- both sides must comply straight away, but they can later take the matter to court/arbitration for a final decision.
5. Where do you get an adjudicator and what does it cost?
Common Adjudicator Nominating Bodies (ANBs):
- RICS (Royal Institution of Chartered Surveyors)
- RIBA (Royal Institute of British Architects)
- CIArb (Chartered Institute of Arbitrators)
- ICE (Institution of Civil Engineers)
- TeCSA (Technology and Construction Solicitors' Association)
Nomination fees (ballpark):
- TeCSA: £450 for a standard nomination; £250 under their Low Value Dispute (LVD) scheme up to £100k
- Others are in a similar couple of hundred pounds range
Adjudicator fees:
- Typical hourly rate: £250-£300/hour
- Common overall fee range: £8,000-£30,000 depending on complexity and value
- On a £10-30k dispute, an adjudicator who is sympathetic to small parties may keep their time down -- but you should still expect a few thousand quid in adjudicator's fees
Who pays?
- The adjudicator can decide who bears their fees -- often the losing party pays most or all
- Each side generally pays their own legal/advisor costs, unless the contract clearly allows otherwise
6. DIY vs using a solicitor
Can you run adjudication yourself? The Act and Scheme don't require a lawyer -- parties can represent themselves.
In practice, success for DIY depends on:
- How clear your case is (smash and grab on missed notices is simpler than arguing defects)
- How organised your paperwork is
- How lawyered-up the other side is
Real-world:
- For a straightforward smash and grab on a clean payment application with no notices, a switched-on subbie can run it with help from a good claims consultant or trade body
- For more complex "true value", defects, delay, contra-charges etc., you'll usually need a construction solicitor or adjudication consultant to have a decent crack at it
Expect to spend: roughly £5k-£15k in professional and adjudicator's fees for a typical £10-30k adjudication, depending on complexity and how hard the other side fight.
It's not a free debt collection service. It's an investment decision: spend £X now to try and pull £Y out of them quickly.
7. Documents you need lined up
If you're thinking adjudication, you need to get your paper (or email) trail tight. Key documents:
- The contract -- this might be a formal sub-contract, a purchase order, or just a chain of emails/WhatsApps
- Your applications for payment -- clearly dated, numbered, with breakdowns
- Any payment notices from them
- Any pay less notices -- or proof these were never sent
- Invoices, delivery notes, timesheets, site diaries
- Correspondence about the money -- chasing emails, any promises of payment, dispute letters
Often, your strongest adjudication point is simply: "I served a valid application, you didn't serve a payment or pay less notice on time, so under section 111 you must pay the notified sum."
That's why discipline on applications and dates matters even if you never adjudicate -- it gives you leverage.
8. After you win -- will they actually pay?
An adjudicator's decision is binding immediately, but there's no guarantee the loser will just write a cheque.
If they don't pay: you can enforce the decision in the Technology and Construction Court (TCC) via a fast-track summary judgment process. The TCC aims to list enforcement hearings quickly -- often within 6-8 weeks of issuing. The court usually enforces adjudicators' decisions robustly, even if there are arguments about valuation, unless there are very limited exceptions (e.g. clear jurisdiction issues or fraud).
If the loser threatens to challenge the decision: they can start separate court proceedings to argue the underlying dispute -- but that doesn't usually stop you enforcing in the meantime. The courts emphasise "pay now, argue later": they pay the adjudicated sum, then run their claim.
If they say they have a set-off or cross-claim: the TCC often says those arguments can be fought later -- they don't undermine the immediate obligation to pay the adjudicated sum, especially in smash-and-grab cases.
So adjudication plus enforcement can force money out of a reluctant, but solvent, payer relatively quickly.
9. Insolvency and Bresco -- what if they're bust?
The Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25 case looked at whether a company in liquidation can still bring an adjudication.
Key outcome: a company in liquidation can adjudicate -- adjudication and insolvency aren't mutually exclusive. But enforcement can be problematic because adjudication is about quick cashflow, while insolvency is about final account between all creditors.
For you on the other side: if the payer is already insolvent, adjudication is often a dead end -- you might win an award you can't realistically enforce.
Before spending money on adjudication, always check Companies House and credit status. If they're on the brink, court paper won't fix a hole in their bank.
10. No written contract? The Scheme has your back
If your construction contract doesn't have compliant adjudication provisions, or is partly oral, then Part I of the Scheme for Construction Contracts is implied into it.
That means:
- You still have a statutory right to adjudicate
- Timelines and powers default to what the Scheme says (notice, referral, 28 days, etc.)
So a handshake job can still be adjudicated, as long as it's a qualifying construction contract and not with a residential occupier.
11. Costs and legal expenses insurance
On costs: each side normally bears its own legal costs, regardless of who wins, unless the contract clearly says otherwise and that term is effective. The adjudicator's fees are usually split as they decide -- often loser pays most or all.
Legal expenses insurance: some business policies include legal expenses cover that can extend to adjudication, but it's very policy-specific. Check:
- Is construction adjudication covered?
- Do you have to use their panel solicitors?
- Any excess or caps?
If you're going to make adjudication part of your toolkit, it's worth talking to your broker about adding commercial legal expenses that explicitly covers it.
12. Reality check for a £10-30k subbie dispute
For a typical self-employed subbie or small firm owed £10-30k:
Upsides:
- Fast -- you can get a decision in 4-6 weeks, plus a few weeks if you need enforcement
- Strong leverage -- main contractors know the TCC enforces adjudicators' decisions hard
Downsides:
- It costs money upfront -- often £5-15k all-in by the time you've paid an adjudicator and had some professional help
- If the other side is in trouble financially, a win on paper might still not turn into cash
- You usually won't recover your legal costs, even if you win
So you treat adjudication like any other investment: check the debtor's financial health, weigh the cost vs the likely recovery, and don't throw good money after bad.
What to do next
- If you're owed money and they won't pay: check your payment applications and their notices first. If they've missed their payment or pay less notices, you may have a strong smash-and-grab case -- that's your fastest route.
- Get your documents in order using the checklist in section 7 before you speak to anyone
- Talk to a specialist -- not a general high-street solicitor. Construction adjudication is a niche and you want someone who does it every week.
- Check your insurance -- your legal expenses cover might fund it
- Read the related guides on payment notices and the Construction Act to understand the payment regime that makes adjudication work
- Download from the Doc Hub: the Payment Notice Deadlines reference card and the Not Been Paid escalation card
A construction solicitor would typically charge £250-400/hour for adjudication advice. This guide is free. If SiteKiln helped, buy us a brew.
Sources
- Housing Grants, Construction and Regeneration Act 1996 -- legislation.gov.uk/ukpga/1996/53 -- statutory right to adjudication, payment notices, pay less notices, section 106 residential occupier exclusion, section 111 notified sum
- Local Democracy, Economic Development and Construction Act 2009 -- legislation.gov.uk/ukpga/2009/20 -- amendments to the 1996 Act including pay less notice regime
- Scheme for Construction Contracts (England and Wales) Regulations 1998 -- legislation.gov.uk/uksi/1998/649 -- implied adjudication and payment terms where contract is non-compliant
- Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25 -- adjudication during insolvency
- Latham Report (1994) "Constructing the Team" -- the review that led to the Construction Act and statutory adjudication
Common questions
What is adjudication in construction?
Adjudication is a fast, binding dispute process under the Construction Act, decided in 28 days. An independent adjudicator's decision is enforceable in court. It costs less than going to court and you can refer a dispute at any time. Both sides usually pay their own legal costs.
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