In construction disputes the situation often arises where one party holds certain documents that the other party needs to be able to recover and produce in order to help it establish its position in an adjudication.
What are your options if the other party refuses to provide you with copies of the relevant documents?
One option is to ask an Adjudicator to instruct the other party to produce the documents. Clause W2 of NEC contracts confer power on an Adjudicator to “instruct a Party to provide further information related to the dispute within a stated time”. In many cases this will be sufficient and effective in achieving the desired outcome. However, you cannot take this step until the adjudication proceedings have actually been commenced. This means that the adjudication cannot be prepared with the benefit of the relevant documents. There is also considerable uncertainty about whether the Adjudicator will actually instruct the documents to be produced and, if so, within what timescales. Depending on the importance, complexity or volume of the documents being sought it may not be realistic to expect the documents to be reviewed, analysed and deployed effectively due to the very tight timescales of adjudication.
A second option may be to ask the Court to order the other party to produce the relevant documents in advance of the commencement of adjudication proceedings. We are currently involved in a case which is testing if this is an option which is available to parties. The Court can order a party to produce documents which relate to any issues which “may relevant arise … in civil proceedings which are likely to be brought”. One of the questions which the Court of Session is being asked to determine is whether adjudications under construction contracts are covered by the phrase “civil proceedings”. If so, this would provide parties with another potentially useful route to recover documents in advance of adjudication proceedings being commenced. We will provide an update on this topic once the Court has issued its judgment.
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