Is There a Risk in Starting Adjudication Too Early? 

Timing is important in adjudication. While the Construction Act says you can refer a dispute “at any time”, in reality you need to ensure you actually have a dispute and that adjudication is timely in context. Starting an adjudication too early before the issue has fully crystallised or before you have the necessary information can carry real risks. 

Risk 1: No dispute and a premature adjudication 

Adjudicators only have jurisdiction if a dispute exists between the parties. A dispute generally means one party has raised a claim or issue and the other has denied liability or failed to respond within a reasonable time. If you rush to adjudication immediately after submitting a claim or variation without giving the other side a chance to consider or respond, they might argue that no dispute had crystallised. This is a common jurisdictional challenge that the adjudication is premature so it couldn’t actually be disputed yet. 

Courts have sometimes agreed with this argument if, for example, an adjudication was launched the day after an invoice was issued with no prior communication. Essentially, if the adjudicator concludes there was no clear dispute, they may resign and your effort is wasted. 

To avoid this, ensure you’ve put your claim in writing to the other party and given them a bit of time to respond or an opportunity to refuse before you refer it. Sometimes even a few days or a marked refusal (like an email saying “we’re not paying this”) is enough. If the other side is silent but the due date has passed, their silence can be taken as a dispute. A refusal by non-response. The key is reasonableness and don’t ambush them completely out of the blue if you can help it. 

Risk 2: Incomplete entitlement or procedural steps 

Some contracts have dispute escalation clauses (negotiation, mediation) or require particular notices before a claim is considered valid. While these usually don’t override the statutory right to adjudicate at any time, a clever responding party might argue you jumped the gun on contractual process. 

If it’s a payment dispute, ensure you followed the correct application process. Starting an adjudication for a payment that isn’t actually due yet could fail. Timing your adjudication to a clear contractual breach. Such as non-payment after the final date, or an express rejection of an extension of time you requested will make it far safer. 

Risk 3: Tactical considerations 

The referring party typically has an advantage in adjudication prep time, but if you rush too much, you might under-prepare your own case. It’s a balancing act that you want to strike while the issue is fresh, but you also want your Referral to be comprehensive and well-evidenced. Because you won’t get to add new claims later. If you start the process without having all your evidence or analysis ready, you could end up with a weaker presentation. 

Also, launching adjudication can escalate the conflict. If negotiations were ongoing and nearly resolved, filing early might harden positions. One common tactic is the strategic “ambush” by serving a Notice at a moment that gives the opponent minimal time to respond. This is legal, but courts take a dim view of deliberate sabotage of the timetable, and it may increase the likelihood of jurisdictional or natural justice challenges from the other side. 

Risk 4: Multiple disputes and premature scope 

If you rush to include everything in one adjudication, you might accidentally refer multiple disputes, which is not permitted without agreement. It’s safer to frame one clear dispute at a time. Trying to adjudicate “everything that’s gone wrong” too early may lead to jurisdiction issues if some of those issues weren’t actually contested yet. 

How to mitigate these risks 

Speak to It’s also wise to get professional advice before filing, especially early in a project. Sometimes the better strategy is to hold fire briefly for example, if you have ongoing works, adjudicating mid-project might aggravate relations. You might achieve the same result by waiting until the next payment cycle or a more opportune moment, unless cashflow demands immediate action. 

Summary 

Yes, there is a risk in starting adjudication too early: you could face a jurisdictional challenge that no dispute had crystallised. This would waste time and money. The adjudicator might resign and you’d have to start over. Always ensure the other party knew of the claim and had a chance to say no, or simply didn’t pay by a due date. That’s usually sufficient to establish a dispute. As a rule of thumb, if you’re wondering “am I being too hasty?”, double-check the communications. A little patience up front can save a lot of trouble, allowing you to adjudicate from a stronger position and at the right time. 

Not sure if your dispute is ready to refer? Talk to Adjudicate before you file. A short conversation could save you a costly false start and make sure you go in at the right time, with the strongest possible case. Get in touch with our team today.