Avoiding Summary Dismissal: Why Adjudicators Refuse to Decide Claims

In UK statutory adjudication, referring parties often focus on convincing the adjudicator on the substantive merits—such as proving a delay, proving quantum, or demonstrating a defect. However, a significant risk is that the adjudicator refuses to decide the dispute at all (or resigns shortly after appointment) because a fundamental threshold challenge has been raised.

When an adjudicator determines early in the process that they lack legal authority—or that procedural rules prevent them from acting—they will issue a decision declining jurisdiction or resign. In those circumstances, the referring party does not get a ruling on the merits, and the considerable costs and effort invested in drafting the Referral Notice are lost.

Understanding why adjudicators turn down or walk away from referrals allows referring parties to mitigate these threshold risks before initiating proceedings.

Core Reasons an Adjudicator Will Refuse to Determine a Dispute

1. Failure of Crystallisation: An adjudicator's power extends only to deciding an existing "dispute." If a claim is referred before the responding party has had a proper opportunity to consider, evaluate, or reject it, no dispute has crystallised. Raised with the adjudicator early, this often prompts an immediate resignation on the basis that the referral is premature.

2. The "One Dispute" Rule: Paragraph 8(1) of the Scheme for Construction Contracts limits an adjudicator’s jurisdiction to a single dispute at a time, unless both parties consent otherwise. If a referring party attempts to bundle multiple distinct claims (e.g., separate subcontracts, unrelated final account issues, or distinct extension of time claims) without agreement, the adjudicator will typically refuse to entertain the bundled referral.

3. Ineligible Contractual Scope: If the contract falls outside Section 104 of the Housing Grants, Construction and Regeneration Act 1996 (such as residential occupier contracts or certain exempt energy/extractive operations) and contains no express adjudication clause, the nominated adjudicator must decline to act.

4. Invalid Appointment & Timetable Flaws: Adjudicators are bound by strict statutory mechanics. If the referring party applies to the wrong Adjudicator Nominating Body (ANB), serves the Notice of Adjudication after applying to the ANB, or fails to serve the Referral Notice within seven days of the Notice, the appointed adjudicator lacks legal standing and must decline the appointment.

5. Prior Determination (Res Judicata): An adjudicator has no power to re-open or re-determine a dispute (or a core component of a dispute) that has already been decided by an adjudicator in a previous proceeding between the same parties on the same project.

Pre-Adjudication Audit: Ensuring the Adjudicator Will Decide Your Claim

Referring parties should audit these key threshold requirements prior to issuing a Notice of Adjudication to prevent an early resignation or refusal to decide:

Crystallisation: Ensure the precise claim and quantum have been clearly submitted to the responding party, and that an express rejection or sufficient lapse of time has occurred before issuing notice.

Single Dispute Scope: Confirm that the referral targets a single, cohesive dispute or that express consent has been obtained for a multi-issue referral.

Statutory/Contractual Qualification: Verify that the underlying agreement qualifies under Sections 104/105 of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996), or contains an express right to adjudicate.

Correct Nominating Body: Check the contract contract schedule to ensure the application is directed to the specified ANB (or the statutory Scheme where none is named).

Sequential Timing: Ensure formal service of the Notice of Adjudication occurs  before applying to the ANB, and that the Referral Notice will be served within seven days of that notice.

No Re-adjudication: Verify that the relief sought does not overlap with issues determined in prior adjudications on the project.

Need Guidance on Structuring Your Referral?

Ensuring an adjudicator accepts and determines your dispute requires thorough preparation on threshold points before proceedings begin. For advice on assessing jurisdiction or structuring a referral strategy, contact Traoloch@kiltoom.net  (https://www.kiltoom.net).