There are very few, if any, reasons why a Respondent should refuse to participate in proceedings.
The most common basis for a Respondent's failure to participate in an adjudication is that it considers the adjudicator does not have jurisdiction to decide the dispute. In these circumstances the Respondent should state their position, and explain the grounds of any jurisdictional challenge in correspondence. If the Respondent's position is properly reserved and it then withdraws from the adjudication, it may raise its jurisdictional arguments in enforcement proceedings.
There are two obvious risks to a Respondent ignoring and refusing to participate in adjudication proceedings:
It is likely that the adjudicator will find substantially in the Referring Party’s favour. It would be naïve to assume that an adjudicator will do anything other than accept the claim as valid, without a response before them; and
A court will enforce the adjudicator’s decision. It appears from case authority that, provided the proceedings were properly served, the Respondent's non-participation will not itself create grounds to challenge the adjudicator's decision.
In the event that a Respondent does have a good reason for failing to participate in an adjudication, then rather than remain silent, it should mark its position carefully with the adjudicator and the Referring Party and this will allow them to rely on this at enforcement stage. Failure to do so will almost certainly result in a decision against the Respondent which will be capable of being enforced.
Next week we will look at issues surrounding the impact on businesses when involved in an adjudication. If you haven’t read our previous adjudication blogs they can be found here. Our commonly used terms glossary for adjudication can be found in our week two blog.
By Morton Fraser - Julie Scott-Gilroy
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