RICS publishes guidance on surveyors acting as adjudicators

A general introduction (see General introduction).

Appointment and acceptance (see What happens on appointment?).

Procedural matters, including the adjudicator's jurisdiction, powers and writing the decision (see Procedural matters, including writing the decision).

The statutory framework of adjudication and the court's interpretation of that framework.

How the standard form contracts have incorporated the statutory framework and how the courts have interpreted standard form contracts.

The practice and procedure of adjudication.

Statutory framework, see Practice notes, Adjudication: an introduction to adjudication and Adjudication using the Scheme for Construction Contracts 1998 and as amended.

Rules of natural justice, see Practice note, Adjudication: duty of natural justice.

The subject matter of the dispute falls within the "sphere of their normal professional practice".

The adjudicator and his organisation have had no significant involvement with either party to the dispute within the last five years.

The adjudicator is not involved in another case that would cause a conflict with the case that is the subject of nomination.

The adjudicator has regard to the guidance note.

The preliminary steps the adjudicator should take. This may include setting out initial directions, confirming which procedural rules apply to the adjudication and the date by which the referral notice is due to be served. The adjudicator should also be prepared to deal with any jurisdictional challenges to his appointment during this stage of the adjudication.

Agreeing terms and conditions with the parties. The guidance highlights that adjudicators are entitled to a reasonable fee, even if their terms and conditions are not agreed by the parties. While it is inappropriate for the adjudicator to claim a lien, he may submit interim applications for payment of his fees.

Timescales in adjudication, see Practice note, Adjudication: section 108 and adjudication procedures.

Appointment process, see Practice note, Adjudication: selecting and appointing an adjudicator.

The adjudicator's powers and duties (such as seeking assistance during the adjudication, using legal or technical advice and communicating with the parties). The guidance also reminds adjudicators that they need to comply with the rules of natural justice, especially when determining the adjudication procedure, dealing with the parties and their submissions, and reaching a decision.

Highlighting the importance of the adjudicator's jurisdiction. In a completely rewritten section, the guidance notes that a lack of jurisdiction is one of the few areas where the courts will refuse to enforce an adjudicator's decision.

The guidance sets out the basis of the adjudicator's jurisdiction and explains when jurisdictional challenges are most likely to be raised. It also distinguishes between threshold jurisdictional challenges (for example, whether there is a construction contract or the parties' dispute has crystallised) and internal jurisdictional challenges (such as whether the dispute referred to the adjudicator is the same as that set out in the notice of adjudication).

The guidance reminds adjudicators that a responding party can raise all available defences in the adjudication, but advises caution when it comes to dealing with counterclaims and set-off and abatement arguments. Here the adjudicator needs to ensure they arise from the dispute referred to adjudication.

Reminding adjudicators that, for construction contracts entered into after 1 October 2011, there is no longer a requirement for it to be in writing. Adjudicators are encouraged to investigate the issue early on, if one party alleges there was no contract at all.

The procedure of the adjudication, such as giving directions and extensions of time.

Establishing the facts and the law, for example dealing with the parties' submissions and issues of natural justice.

Evidential matters, such as factual and expert evidence, and what happens if the referring party "ambushes" the responding party.

Other matters such as meetings with the parties, third party evidence and how to deal with intimidatory tactics from the parties.

The form and content of the adjudicator's decision, including what the RICS considers to be the minimum requirements and suggested contents of the decision. The guidance also highlights the distinction between reaching and delivering a decision. In addition, it refers to:

Dealing with liability for the adjudicator's fees and expenses, as well as the parties' costs. With regard to Tolent clauses and whether the Construction Act 1996 (as amended) outlaws such clauses, adjudicators are advised to be cautious when dealing with the issue. They should be "reluctant to apply terms that strike at the heart of the principle that there is a right to have a dispute adjudicated" (paragraph 3.6.6, guidance).

In addition, so far as an adjudicator has the power to deal with the parties' costs, they should follow the general principle that costs follow the event. Adjudicators should also familiarise themselves with CPR Part 44.5 and its Practice Direction.

Adjudication: jurisdiction of the adjudicator.

Adjudication: challenging enforcement of the adjudicator's decision.

Adjudication: an adjudicator's decision.

Adjudication: when the adjudicator calls an oral hearing.