Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott1
Contents
What is Adjudication?.................................................................................................... 1
Where is it found? ...................................................................................................... 3
The Burden of Proof .................................................................................................. 3
Default Provisions ...................................................................................................... 3
Ambush and Reverse Ambush ................................................................................... 4
The Place of Delay Claims in Adjudication .................................................................. 4
Attack ......................................................................................................................... 4
Delay Claims as Progress Claims .......................................................................... 5
Damages ................................................................................................................. 6
Defence ...................................................................................................................... 6
Set-Off.................................................................................................................... 6
A Place for the Analysis ................................................................................................ 7
The Payment Claim.................................................................................................... 7
The Payment Schedule ............................................................................................... 8
The Adjudication Application Submissions .............................................................. 8
The Adjudication Response ....................................................................................... 8
Further Submissions................................................................................................... 9
The Decision .............................................................................................................. 9
The Shoehorn ............................................................................................................... 10
Complete Models are Too Big ................................................................................. 10
Overview Analysis ................................................................................................... 11
Pinch Point Analysis ................................................................................................ 11
The Use of Experts................................................................................................... 11
Who is the Advocate? .............................................................................................. 11
Electronic Presentation ............................................................................................ 12
The Proof of the Pudding ............................................................................................. 12
What is Adjudication?
Adjudication is a rapid form of dispute resolution that has since the 1990s been
developed for the construction industry. Its precise form varies from jurisdiction to
jurisdiction, but its general features are as follows:

1
Parties to a construction contract have a right to have their disputes
adjudicated, which right cannot be removed by contract
Robert Fenwick Elliott is a solicitor admitted in England and Wales, an adjudicator, mediator and
author. He is a convenor of the Adjudication Forum of Australasia (www.bigbutton.com.au/~afa), and
written and lectured widely in both the Northern and Southern hemispheres on construction law issues,
including delay issues. He was the founding partner of Fenwick Elliott LLP in London, the largest firm
of construction specialist solicitors in the Commonwealth, and now lives in Adelaide, where he is
involved in setting up a new Australian construction law practice, Fenwick Elliott Grace.
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________

The adjudicator is not necessarily a lawyer and is typically a construction
professional

The process takes just a few weeks

The process is one of “pay now, argue later”: the loser has to write a cheque
but retains the right to have the dispute litigated or arbitrated in full in due
course.
In Australia, the trend has been for adjudication to be rather more restricted in scope
than in the UK model. Thus there are the following differences between the English
and the New South Wales2 systems3:
Which parties may initiate
and adjudication?
What disputes may be
adjudicated?
What is the basic period
within which the
adjudicator must reach his
decision?
Can that period be
extended?
Can the parties agree on
the identity of their
England and Wales
Any4
New South Wales
Only payees5
Any6 including damages
claims
Only claims to a progress
payment under the
contract7
10 business days after the
adjudicator accepts the
adjudication9
28 days from referral8
Yes, by 14 days with the
consent of the referring
party10, or any period with
the consent of both parties
after the dispute has
arisen11
Yes13
Yes, if both parties agree12
No14
2
New South Wales is taken here because was the first of the Australian states to introduce
adjudication, and there have been many more adjudications so far in NSW than in the other states.
3 References below are the English Housing Grants Construction and Regeneration Act 1996, and to
the NSW Building and Construction Industry Security of Payment Act 1999 as amended by the
Building and Construction Industry Security of Payment Amendment Act 2002.
4
Section 108
5
i.e. a party entitled to serve a payment claim under the contract; section 17
6
Section 108
7
Section 13(1)
8
Section 108(2)(c)
9
Section 21(3)(a)
10
Section 108(2)(d)
11
Section 108(2)(c)
12
Section 21(3)(b)
13
Scheme for Construction Contracts Part I para 2
14
Section 17(3) and 17(6). But note that the Victorian Act is different: there the parties may agree on
the identity of their adjudicator (section 18(3)(a) of the Building And Construction Industry Security Of
Payment Act 2002 (Victoria)), and indeed an adjudication process may be invalid if there has been no
attempt to agree on the adjudicator (Shelford v Rescom 8th July 2005 County Court of Victoria at
Melbourne, Judge Shelton)
© Robert Fenwick Elliott 2005
Page 2
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
adjudicator?
Are the parties allowed
legal representation at
hearings?
Yes15
No16
In all these places, there have been some focus on the dilemma of subcontractors who
have traditionally had difficulty getting their progress payments made promptly to
them, and particularly in Australia there could be the feeling that the “Aussie battler”
is what the legislation is all about. In the UK model, there is a broader approach, on
the basis that the time and cost in all construction disputes has been too great, and
there have been many very large disputes referred to adjudication. There is some
evidence that adjudication in Australia is beginning to move in the UK direction, with
a number of adjudications now launched for tens of millions of dollars.
Where is it found?
Adjudication in its modern form originated in the UK, but has spread rapidly around
other commonwealth jurisdictions, including Australia:
Date of Legislation
1996
1999
2002
2004
Jurisdiction
England & Wales
Scotland
Northern Ireland
New South Wales
Victoria
New Zealand
Queensland
Western Australia
Northern Territory
Singapore
The Burden of Proof
Adjudication is intended to be – and is – a much faster process than litigation or
arbitration, and there is obviously not time for the adjudicator to apply the same
rigorous burdens of proof as apply in litigation and arbitration, particularly in a large
or complex case. Time after time, in different jurisdictions, courts have sanctioned
the use by adjudicators of broad brush approaches.
Default Provisions
15
Neither the statutory sources nor any of the standard form adjudication rules contain any prohibition
Section 21(4A). But note that there is not the same prohibition in e.g. Victoria; see section 22(5)(c)
of the Victorian Act
16
© Robert Fenwick Elliott 2005
Page 3
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
It is a feature of the Australian system that the payee under a construction contract
who is or who claims to be17 entitled to a progress payment may serve a payment
claim on his employer18. If the employer then fails to serve a payment schedule in
response in time, the payee can adjudicate or, simpler, apply to the court for recovery,
in which case the employer is entitled to raise no set-off or defence19.
Ambush and Reverse Ambush
It has been a concern of commentators that adjudication should not become an
instrument of ambush, whereby contractors spend a long time preparing complex
claims against their employers before springing their trap, such that employers have
inadequate time to prepare their response.
In practice, ambush has been less of a problem than feared, partly because
adjudicators have taken a fairly robust approach to their powers to guillotine
submissions, and partly because they have tended to make clear to claimants that they
cannot expect a sympathetic hearing of their complex claims unless they agree to a
sufficient extension of the timetable to allow adequate time for the respondents.
In the UK, there have however been some instances of reverse ambush, where
employers have sought adjudication of contractors’ claims before those contractors
have had time to fully develop them. There is no evidence of reverse ambush in
Australia, where employers are not entitled to initiate adjudications.
The Place of Delay Claims in Adjudication
Delay claims can feature in adjudication as the whole or part of the claimant’s claim,
or as the whole or part of a defence. These are considered in turn.
Attack
Many standard forms and custom-made construction contract contain provision to the
effect that, if the contractor is delayed by reasons which are not his fault, or which are
his employer’s fault, then he is entitled to time-based compensation under the
contract, sometimes called “delay damages”20. Occasionally, these entitlements are
liquidated, but more often they are not, in which case these sums due as payments
under the contract are typically calculated in much the same way as damages are
calculated for breach of contract; either way, their calculation usually involves
answering the question: “How much reimbursable time is the contractor entitled to?”
“Or claims to be” is given full meaning – see Energetech v Sides Engineering & Anor [2005]
NSWSC 801 at para 22
18
Section 13 of the NSW Act
19
Section 15(4)(b) of the NSW Act
20
Thus Clause 34.9 of the amended version of AS 4903-2000 considered in Coordinated v Hargreaves
(see below) provided as follows:
For every day the subject of an EOT for a Compensable Cause and for which the
Subcontractor gives the Subcontract Superintendent a claim for delay damages pursuant to sub
clause 41.1, damages certified by the Subcontract Superintendent under sub clause 41.4 shall
be due and payable to the Subcontractor.
17
© Robert Fenwick Elliott 2005
Page 4
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
and hence some sort of critical path analysis. These provisions are the corollary of the
typical liquidated damages provisions, whereby contractors are required to
compensate the employer where it is the contractor’s fault that the delay has occurred.
It is convenient here to note that all of the provisions involve payments pursuant to
express provisions of the contract – and not damages for breach of contract – even if
the expression “damages” is used.
In the UK, disputes about the level of a contractor’s entitlement to time-based
compensation are certainly adjudicable – all disputes under a construction contract are
adjudicable – in Australia, the question usually revolves around whether the claim can
be characterised as a progress claim.
Delay Claims as Progress Claims
Despite some earlier doubts, it is now21 clear form the New South Wales Court of
Appeal decision in Coordinated Construction Co. Pty. Ltd. v. J.M. Hargreaves (NSW)
Pty. Ltd. & Ors22 that a contractor’s entitlement to time-based compensation under a
contract is generally within the scope of a progress payment and thus recoverable by
adjudication, regardless of whether the entitlement is called “delay damages”23. The
word “generally” here does not qualify the time-entitlement aspect, but rather the
quantification that goes with any time awarded; it is arguable that whilst both on-site
and off-site overheads are recoverable as progress payments, compensation for less of
21
But note that the Coordinated case is, at the time of writing, subject to appeal to the High Court.
[2005] NSWCA 228
23
Hodgson JA said:
41 In my opinion, the circumstance that a particular amount may be characterised by a
contract as “damages” or “interest” cannot be conclusive as to whether or not such an amount
is for construction work carried out or for related goods and services supplied. Rather, any
amount that a construction contract requires to be paid as part of the total price of construction
work is generally, in my opinion, an amount due for that construction work, even if the
contract labels it as “damages” or “interest”; while on the other hand, any amount which is
truly payable as damages for breach of contract is generally not an amount due for that
construction work.
42 Under the contract in this case, delay damages are payable only if an EOT is for a
compensable cause, that is, in general some act or omission of the head contractor or the
superintendent or the sub-contract superintendent; but nevertheless, they are not of their nature
damages for breach but rather are additional amounts which may become due and payable
under the contract (cl.34.9) and which are then to be included in progress payments (cl.37.1).
They are therefore prima facie within s.9(a) of the Act.
43 If in substance they represent the increased cost or price of construction work actually
carried out, in my opinion they are clearly for construction work carried out. If they represent
the cost or price of goods or services actually supplied in connection with the construction
work under the contract, they are for related goods or services supplied, even if not for
construction work carried out.
44 If they represent off-site costs (such as office overheads) or other on-site costs, it may be a
question of fact and degree whether they are for construction work carried out or for related
goods and services supplied. They would in my opinion properly be regarded at least as part
of the price for the totality of the construction work when completed. And it would seem
artificial to say that they are excluded from the Act if they are not referable to work that has
already been carried out, particularly when s.9(b) refers to the value of construction work
undertaken to be carried out and related goods and services undertaken to be supplied.
22
© Robert Fenwick Elliott 2005
Page 5
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
profit by way of Hudson Formula or Eichleay Formula24 calculation may perhaps be
outside the scope of the Act25.
Although a detailed discussion of the point is outside the scope of this paper, it is
worth noting that, even if a particular claim is not on a proper analysis within the
scope of the Act, then an adjudicator’s decision on it may yet be enforceable pursuant
to the principles set out in Brodyn Pty. Ltd. v. Davenport26.
Damages
If a contractor is delayed by an employer, he may well be entitled to claim damages
for breach of contract at common law. Such claims are adjudicable in the UK but not
in Australia.
Defence
If a claimant makes a progress claim that includes time-based compensation, it is of
course open to his employer to respond with a different analysis of who has caused
the delay in question, and any such analysis is likely to require consideration by any
adjudicator appointed to consider the issue. More importantly, the employer may
have a delay-based set-off to any claim made by his contractor.
Set-Off
Under the Australian system, the contractor is entitled to serve a payment claim
setting out what progress claim he makes – that claim might or might not include a
delay element. The employer is then entitled to serve a payment schedule setting out
how much he proposes to pay, and
(3) If the scheduled amount is less than the claimed amount, the schedule must
indicate why the scheduled amount is less and (if it is less because the respondent is
withholding payment for any reason) the respondent’s reasons for withholding
payment.27
24
See for example Building Contract Disputes: Practice and Precedents, Robert Fenwick Elliott, Pub:
Sweet & Maxwell, paragraph 1-429
25
Hodgson JA went on in paragraph 44 of his judgment to say:
However, it is not necessary in this case altogether to exclude the possibility that some delay damages
claimed under this contract might possibly not be for construction work carried out or related goods
and services supplied within the definition of “claimed amount” in s.4; but it is certainly not obvious
that this is so in relation to any of the claims in this case.
26
[2004] NSWCA 394. In Coordinated v Hargreaves, Hodgson JA applied Brodyn as follows:
45 It follows from this discussion that delay damages and interest under this contract could be
claimed to be due for construction work carried out or for related goods and services supplied;
and in my opinion, even if s.13 is construed as limiting claims to claims for payment for
construction work carried out or for related goods and services supplied, it would be for the
adjudicator to determine whether or not such amounts should be included in the amount
determined, having regard particularly to s.9(a) and other provisions of the Act and the
contract. This appears to be what each adjudicator did; and I am not satisfied even that any
error of law on the face of the record has been established, much less an error of the kind that
could invalidate a decision.
27
Section 14(3) of the NSW Act. Section 15(3) of the Victorian Act is in the same terms.
© Robert Fenwick Elliott 2005
Page 6
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
If the payment schedule is for less than the payment claim, there is an adjudicable
dispute. Although the Acts are less than explicit, it seems that the function of the
adjudicator is to determine what payment is (or was) in fact due. The adjudicator is
limited in the material that he is allowed to take into account, but that material
includes the employer’s payment schedule; he must consider inter alia
(d) the payment schedule (if any) to which the application relates, together with all
submissions (including relevant documentation) that have been duly made by the
respondent in support of the schedule28.
One reason that entitles a contracting party to withhold payment is a set-off at
common law – that is to say a cross claim that arises under the same contract either by
way of a sum due under the terms of that contract or a claim for damages at common
law. Thus, if the employer has a delay claim against his contractor, he is entitled to
advance that claim in a payment schedule, and it will - if sound – operate by way of
defence in adjudication, in whole or in part.
A Place for the Analysis
In traditional litigation or arbitration, the parties’ delay analyses may not emerge until
exchange of expert’s reports. Adjudication is very different.
The Payment Claim
If a claimant wants to claim delay costs in adjudication, he must do so in his payment
claim. Section 13(2) of the NSW Act does not in terms require the claimant to
include his delay analysis, or even to identify how much time he is claiming to be
compensated for, but merely how much he is claiming for what work:
(2) A payment claim:
(a) must identify the construction work (or related goods and services) to
which the progress payment relates, and
(b) must indicate the amount of the progress payment that the claimant
claims to be due (the claimed amount), and
(c) must state that it is made under this Act.
In practice, however, it is difficult to see how a claimant can credibly sustain a delay
claim in adjudication unless he has, in his payment claim, included at least an outline
of the claim, including a calculation of what sums he is claiming in respect of what
period or periods. Further, if the claimant does not supply enough detail in his
payment claim, the adjudicator may be prohibited from looking at later submissions29.
28
29
Section 22(2)(d) of the NSW Act. Section 23(d) of the Victorian Act is in the same terms.
John Holland v Cardno, [2004] NSWSC 258, in which Einstein J said:
22 … Whilst a claimant which provides the most minimal amount of information in its
payment claim may even so, be seen to technically comply with section 13, such a claimant
will expose itself to an abortive adjudication determination if it be that:
· the respondent is simply unable to discern from the content of the payment claim,
sufficient detail of that claim to be in a position to meaningfully verify or reject the
claim: hence not then being in a position to do otherwise than to reject the whole of
the claim on the basis of its inability to verify any part of the claim;
© Robert Fenwick Elliott 2005
Page 7
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
The Payment Schedule
In NSW30, if the employer wants to oppose a claim by reference to his own delay
claim, he must certainly refer to it in his payment schedule. The Act merely requires
him to give “reasons”, but a payment schedule that says just:
“I am paying you only $y instead of the $x you claim because I have a delay
claim against you”
is, again, unlikely to be credible.
The Adjudication Application Submissions
When the claimant launches his application, the application
(h) may contain such submissions relevant to the application as the claimant chooses
to include31.
Is this an opportunity to include a delay analysis? It probably is, and if the payment
claim has not included a delay analysis, it is likely to be the claimant’s last chance.
The Adjudication Response
Section 20(2) of the NSW Act provides that
(2) The adjudication response:
(a) …
(b) …
(c) may contain such submissions relevant to the response as the respondent
chooses to include.
(2A) The respondent may lodge an adjudication response only if the respondent has
provided a payment schedule to the claimant within the time specified in section 14
(4) or 17 (2) (b).
(2B) The respondent cannot include in the adjudication response any reasons for
withholding payment unless those reasons have already been included in the payment
schedule provided to the claimant.
Provided that the payment schedule has at least set the scene, this is an opportunity to
put forward the respondent’s delay analysis, whether that be by way of a counter to
the claimant’s delay analysis, or by way of support for the respondent’s time-based
set-off.
· the claimant then elects to include the missing detail in the adjudication application
with the inexorable consequence that the respondent is barred by section 20 (2B)
from dealing with that detail/matter in its adjudication response;
· the adjudicator relies in determining the adjudication application upon the detail
supportive of the payment claim which first emerged as part of the adjudication
application
30
See below as to the position in Victoria.
31
Section 17(3)(h) of the NSW Act. Section 18(2)(d) of the Victorian Act is in the same terms.
© Robert Fenwick Elliott 2005
Page 8
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
In Victoria, there are no restrictions in the terms of subsections 2A or 2B. Does that
mean that the respondent can delay any mention of his time-based set-off until his
adjudication response? Not safely, no, not least because the claimant might simply
enforce his claim a debt under section 16(2)(a) of the Victorian Act without going to
adjudication at all. But if the claimant has chosen the adjudication route, then a
Victorian respondent can, it seems, raise a time-based or indeed any other set-off at
this stage regardless of whether he has referred to it in his payment schedule.
Further Submissions
In a case involving allegations of delay, the adjudicator is likely to be faced with
submissions of the parties that will probably have been put together in haste, and
further – there having been no process of pleading whereby the parties will have
joined issue in any formal way , the submissions he has at the commencement of the
adjudication are likely to be in the nature of “ships that pass in the night”. He is thus
likely to be attracted by his power to request further submissions:
(4) For the purposes of any proceedings conducted to determine an adjudication
application, an adjudicator:
(a) may request further written submissions from either party and must give
the other party an opportunity to comment on those submissions, and
(b) may set deadlines for further submissions and comments by the parties,
and
(c) may call a conference of the parties, and
(d) may carry out an inspection of any matter to which the claim relates.
(4A) If any such conference is called, it is to be conducted informally and the parties
are not entitled to any legal representation.
(5) The adjudicator’s power to determine an adjudication application is not affected
by the failure of either or both of the parties to make a submission or comment within
time or to comply with the adjudicator’s call for a conference of the parties32.
The Decision
It is unwise for the adjudicator to make his own delay analysis and to put it forward in
his decision. In the English case of Balfour Beatty v Lambeth33, the adjudicator did
delay analysis work without giving the parties opportunity for further comment, and
this was found to amount to a breach of natural justice notwithstanding that the
English legislation requires the adjudicator to exercise his initiative in ascertaining the
facts and the law. This is not to say that an adjudicator is bound to adopt either one
party’s analysis or the other’s wholesale; he can certainly decide which parts of which
party’s analysis to accept34.
32
This is the text of section 21(4) of the NSW Act; the Victorian Act is in similar terms, but without
the prohibitions at subsection 4A.
33
[2002] EWHC 597 (TCC)
34
Thus in the English case of Try v Eton House (2003) CILL 1982, the adjudicator made an
assessment of delay entitlement based on analysis of agreed delay expert evidence, and this was not a
breach of natural justice.
© Robert Fenwick Elliott 2005
Page 9
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
The Shoehorn
It is clear that those framing the Australian adjudication legislation did not fully
appreciate the extent to which issues much more complex that those of mere valuation
of building work would enter the adjudication frame, and the adjudication timetable is
often going to be much too tight to do a delay analysis full justice. But in
circumstances where there are delay claims, the parties must try to shoehorn what
they have to say into the available opportunity.
What is an adjudicator going to do when faced with analysis from one or both parties
that he simply get to the bottom of in the time available?

If the time claim is that of the claimant, he may either conclude that the claim
has not been made out, and dismiss it, or do his best to make such assessment
of it as he can.

If the time claim is that of the respondent, the position is more difficult:

o He may feel that it is beyond his duties to consider the claim,
particularly if it is a damages claim, and ignore it. That approach is, it
is submitted, almost certain to be wrong in principle, and any decision
based on it is susceptible to attack in the courts as fatally flawed.
o He may take the traditional line of the courts on summary judgment
applications, that if a defence is raised that it prima facie credible and
which the claimant cannot dispel, then the claim must fail. Such an
approach might also be open to challenge in principle, but in practice it
will be much harder for a claimant to obtain a remedy.
o He may make an assessment, however broad brush, of the likely merit
of the time claim, and give effect to it accordingly. This is probably the
right course for an adjudicator to take, but many adjudicators,
particularly those without legal training and without the benefit of legal
submissions, be shy of it.
Note that if the claimant puts in a delay analysis that the respondent does not
challenge (or challenges on grounds other than its merits) the adjudicator may
simply accept the analysis at face value35. It is for this reason that respondents
will often be well served by mounting a reasoned challenge, even if they have
some other sort of defence that wish to run.
Complete Models are Too Big
Obviously, in a large and complex case, 10 business days is not enough time for the
adjudicator to obtain adequate submissions on, to decide and to draft reasons for a
35
That appears to be what happened in Coordinated v Hargreaves, ante.
© Robert Fenwick Elliott 2005
Page 10
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
decision based on a comprehensive delay analysis. So parties are well advised to find
ways of presenting something more likely to be digestible.
Overview Analysis
All delay analysis represents a simplified model of the real world, each activity and
each constraint at best approximating actuality. A delay analysis destined for
adjudication should simply to the maximum extent.
Pinch Point Analysis
A moderate analysis might contain, say, 1000 activities and a few thousand
constraints. But even in a full blown piece of litigation or arbitration, the attention of
the court or arbitrator is likely to focus on just a few pinch points, where the parties
fundamentally disagree, and to take the rest of one or other party’s analysis more or
less at face value. In adjudication, one approach is to focus on what appear likely to
be those few pinch points. The Achilles heel of this approach is, of course, that it is
likely to be relatively easy for the other party to claim that the real issues lie
elsewhere, and then very hard for the first party to effectively cover that ground also.
The Use of Experts
In the UK model of adjudication, the adjudicator can usually appoint a delay expert to
advice him36, but there is no such power in Australia. The parties are likely to engage
delay experts to advice them and prepare submissions, but there is no procedure
whereby their expert reports are exchanged.
Who is the Advocate?
In the UK, it is the norm for the adjudicator to hold some sort of hearing in large or
complex case, typically severely guillotining the time available to each party. The
Australian legislation refers more coyly to a “conference of the parties”, and the NSW
legislation now contains the extraordinary37 exclusion of “lawyers”38. These hearings
are much rarer in Australia than in England, but are perhaps likely to increase in use.
When they do occur, the parties will generally be best represented by their delay
analysts themselves or, outside NSW, by their lawyers.
36
Paragraph 13(f) of the scheme entitles him to
(f) obtain and consider such representations and submissions as he requires, and, provided he
has notified the parties of his intention, appoint experts, assessors or legal advisers
37
Extraordinary not only because it makes the adjudicator’s job so much harder, but also because,
absent the statutory provision, the exclusion of lawyers might well amount to a fundamental breach of
natural justice.
38
Query what this means. Does the exclusion prohibit law graduates who are not admitted in that
state? Or in any state in Australia? Or overseas practitioners? Or legal clerks?
© Robert Fenwick Elliott 2005
Page 11
Presenting Prolongation Claims in Adjudication
Robert Fenwick Elliott
_____________________________________________________________________
Electronic Presentation
It has for some while been the practice of some parties in litigation, arbitration and
adjudication (UK) or DBR proceedings (US) to supplement their delay analyses with
electronic presentations – usually with voice over – which are distributed either as
videos, DVDs or even just PowerPoint files or similar with sound. One of these
presentations running to, say, 30 or 45 minutes can, if well done, have as much impact
as a day’s submissions in court, and in adjudication, where the opportunity to orally
explain an analysis is very limited or non existent, such presentations can have
considerable value.
The Proof of the Pudding
Adjudication was developed as a “quick fix” for keeping the cash flow moving down
the line in construction projects, but has in fact developed across the construction
dispute board. In jurisdictions where the system has matured (a process that takes a
few years) there are now very many more cases, even complex cases, that are resolved
by adjudication than by litigation or arbitration. In practice, very few losing parties
(perhaps 1%) have availed themselves of their right to litigate or arbitrate matters that
have been determined in adjudication, save to try to challenge immediate enforcement
of the adjudicator’s decision.
Adjudication represents by far the most cost efficient means of establishing a timebased claim or defence. Medium term experience of the UK regime and shorter term
experience of the NSW regime shows that delay claims are sustainable in
adjudication; query how they will develop in the longer term in the more restrictive
Australian system as a whole.
Robert Fenwick Elliott
[email protected]
October 2005
© Robert Fenwick Elliott 2005
Page 12