Drafting Adjudication Submissions

Each of the four standard form construction contracts commonly used in South Africa (FIDIC, GCC, JBCC and NEC3) make provision for resolution of disputes by way of adjudication.

The CIDB discourages the holding of a hearing during adjudication proceedings, and the expectation is that the parties will present their versions to the adjudicator in written form.  This means that the quality and content of the written submissions made to the adjudicator can make or break a party’s case.

These submissions usually consist of a referral (statement of case/statement of claim) by the claimant and a response (statement of defence) by the respondent.  The claimant may wish to make a further reply (replication) to any new material raised in the response, and (although it is not always necessary) the respondent may wish to submit its own reply (rejoinder) to this as well.

Ideally, the referral will explain to the adjudicator:

• Who the parties are and why they are involved in the proceedings;
• The details of the contract and which clauses are relied upon in support of the claim;
• The details and sequence of events (preferably in chronological order) which lead to the dispute; and
• The remedy (prayer) that the claimant wants the adjudicator to include in his/her award.

It is important that the claimant demonstrate compliance with each element of the cause of action upon which it bases its claim.  For example, a breach of contract will require the claimant to demonstrate:

• That there was a contract in the first place;
• That a term of this contract was materially breached by the respondent;
• That this breach caused damage to the claimant; and
• What this damage was.

Each allegation must be supported by evidence and reference to the relevant contractual provisions or law.  A mistake typically made by those with a legal background, is to reserve or hold back legal/contractual argument and the production of supporting documents from their submissions, as they would in court proceedings.  As there is unlikely to be a hearing or any sort of verbal submissions in an adjudication, however, this will reduce the impact of the claimant’s case.

It should also be borne in mind that an adjudicator is not strictly bound by the rules of evidence that would apply to court proceedings.  The adjudicator’s overarching obligation will be to comply with the rules of natural justice i.e. to consider both parties versions and to avoid any appearance of bias (in particular, the adjudicator cannot be seen to be making the case for either party).

This doesn’t mean that the claimant avoids the obligation to prove its case.  He who alleges (in this case the claimant) must prove (bears the burden of proof) and it is the claimant’s obligation to prove its version (by way of the production of evidence) on a balance of probabilities.  The burden of proof always remains upon the alleging party.

The burden of proof can be distinguished from the evidential burden which shifts from party to party.  If the claimant establishes its version and the existence of a dispute by way of evidence, the burden of rebutting this by way of further/alternative evidence shifts to the respondent.  The respondent is not obliged to prove a plain denial but is obliged to provide evidence to prove any counter (differing) version of events.

The respondent will do this by way of its referral.  It is important for the respondent to answer each and every allegation made in the referral, usually responding to it paragraph by paragraph (ad seriatim).  If it does not, it may give rise to an inference that the respondent has admitted the unanswered allegations.

The response should follow the same guidelines regarding the inclusion of contractual/legal argument and supporting documents as those for the referral and, at the end, include a request for a remedy (prayer) usually that the claimant’s case is dismissed.

Evidence can be oral (in the case of an adjudication this will be produced by way of supporting affidavits), documentary such as site diaries and invoices, or ‘real’ such as the actual defective goods supplied or installed.

Evidence can also be direct (a direct assertion), circumstantial (where inferences are drawn from the evidence), primary (which doesn’t suggest better evidence is available e.g. signed daily diaries), secondary (which does suggest better evidence is available e.g. a schedule produced by the claimant from the signed daily diaries) and hearsay (which depends on the credibility of someone other than the person giving the evidence and is, therefore, usually inadmissible).

Whether you are drafting the referral or response, your ultimate aim is to persuade the adjudicator to provide an award in your favour.  This is done by providing the adjudicator with a logical and easy to follow narrative, which sets out all of the contractual/legal arguments in your favour and supports each factual allegation with appropriate evidence.

Author: Michelle Kerr, Senior Associate