Security of Payment insight #3: Adjudication applications
Include in an adjudication application the following content:
overview of the project;
objectives of the Act (to promote cash flow and make decisions on an interim basis);
any overarching, broad submissions;
submissions as to why the adjudicator has jurisdiction to determine the application (eg, that the payment claim is valid);
submissions on individual claims;
submissions on what is said in any lay evidence (witness statements or statutory declarations) and, if procured, expert evidence and how that supports each claim.
As for layout, the claimant should present its case in the first and then address any replies to the payment schedule secondly, as a responsive position. Address submissions in the order that the individual claims appear in the payment claim. Sometimes it may be efficient to categorise claims where they have an obvious commonality.
Help the adjudicator by providing a table of the parties’ positions as a schedule to the adjudication application. Usually the respondent’s payment schedule should suffice however payment schedules can sometimes unhelpfully be spread out over several Excel pages, so consolidate the information into a single sheet.
As for supporting documents, include as annexures or exhibits, consider including the following to the extent they are relevant:
claims registers (Excel files);
claims (underlying claim submissions made under the contract documents);
responses to claims;
emails / correspondence;
site records (i.e. employee timesheets / daily records);
programmes, if delay is claimed.
Usually some lay evidence will be required to support the application. Only take statements which are relevant to the issues claimed. Cut unnecessary evidence, it too frequently finds its way into statements and goes nowhere. Statements are usually required from the project engineer (to set out what happened on the ground), a programmer (if claims relate to costs associated with an extensions of time) and a commercial manager (to give evidence as to costs incurred). Lay statements are not necessary but are helpful.
Expert evidence is sometimes served in addition to lay statements. For EOT claims, a programming expert might opine on the estimated amount of delay that will be incurred as a result of a particular event which the claimant says it is entitled to time and money, for example. That is assuming some form of prospective delay analysis is required by the contract. A quantum expert might opine on reasonable costs incurred where there is no applicable contract rate, for example.