Resolving Construction Disputes: Adjudication, Arbitration and Litigation Compared

The three main routes

Construction disputes in England and Wales are almost always resolved through one of three forums:

1. Statutory adjudication under the Housing Grants, Construction and Regeneration Act 1996
2. Arbitration, where the contract provides for it
3. Litigation in the Technology and Construction Court (TCC)

Each has a place. Picking the wrong one wastes months and tens of thousands of pounds.

Adjudication — fast, rough, cash-flow driven

Adjudication is the workhorse of UK construction dispute resolution. Any party to a qualifying construction contract has a statutory right to refer a dispute at any time, and to get a binding decision in 28 days (extendable to 42 with consent).

It is best for:

• Interim payment disputes — unpaid applications, pay-less notice failures, smash-and-grab claims.
• Discrete valuation arguments — final account disagreements, loss and expense quantum.
• Single defects issues with a clear scope.

It is poor for:

• Multi-issue disputes with overlapping facts and dozens of witnesses.
• Cases that genuinely need disclosure or cross-examination.
• Pure points of contract construction that benefit from appellate scrutiny.

Decisions are temporarily binding — you can re-litigate or re-arbitrate later, but in practice most adjudication decisions stick because the loser does not want to spend more money on a second bite.

Arbitration — private, final, contract-driven

Arbitration only applies if your contract says so. Many older JCT contracts opt in by default; most modern NEC contracts default to litigation unless the parties choose otherwise.

Strengths:

• Confidentiality — useful where reputation, design IP or commercially sensitive pricing is at stake.
• Specialist tribunal — you can appoint a construction-experienced arbitrator.
• Finality — very limited appeal rights under the Arbitration Act 1996.

Weaknesses:

• Cost — you pay the tribunal, the venue and the lawyers. For mid-value disputes this often exceeds TCC costs.
• Limited interim relief compared to a court.
• No automatic joinder of third parties — a problem in chains of sub-contracts.

TCC litigation — the default for serious disputes

The Technology and Construction Court is a specialist division of the King''s Bench Division. Judges are construction specialists, the procedure is tailored, and the court enforces adjudication decisions quickly.

Use it for:

• High-value, multi-party disputes (main contractor, sub-contractors, designers, insurers).
• Cases needing enforcement of an adjudicator''s decision.
• Disputes raising novel points of law that benefit from a reportable judgment.
• Professional negligence claims against architects, engineers or quantity surveyors.

Typical timeline: 12 to 24 months from issue to trial, depending on complexity.

Choosing between them — a quick decision tree

Question	If yes, consider
Is the dispute mainly about an unpaid application or pay-less notice?	Adjudication
Do you need a final, confidential decision and the contract requires it?	Arbitration
Are there multiple parties, large sums, or you need disclosure?	TCC litigation
Is there an existing adjudication decision the other side will not pay?	TCC enforcement

Tactical points often missed

• Get counsel involved early. The cheapest construction case is the one where the notice of dispute is drafted properly first time.
• Mind the pay-less deadline. A smash-and-grab adjudication can be won or lost on a single date.
• Check the contract''s dispute resolution clause before you act. A multi-tier clause (negotiation, then mediation, then arbitration) is enforceable.
• Consider the Pre-Action Protocol for Construction and Engineering Disputes before issuing in the TCC.

How we help

Clerk&Counsel matches you with construction barristers who do this work daily — drafting adjudication notices and responses, advising on JCT and NEC contract interpretation, and appearing in the TCC and in arbitrations.

Send us a brief or read more about construction barristers and construction adjudication.