Can the successful party recover its legal and expert costs of adjudication from the losing party?
The usual position is that each party bears its own legal and expert costs. An adjudicator does not acquire a general costs jurisdiction merely because one party succeeds.
Party costs require a valid written agreement made after the notice of adjudication; adjudicator's fees are governed separately
Section 108A restricts agreements allocating adjudication costs. A contractual provision dealing with the adjudicator's own fees and expenses can be effective if it is written into the construction contract and gives the adjudicator power to allocate those fees. An agreement concerning party costs can be effective if made in writing after notice of intention to refer has been given. A pre-dispute term purporting to shift legal or expert costs is generally ineffective under the current regime. Do not confuse an allocation of the adjudicator's account with an award of one party's representation costs.
| Issue | Position |
|---|---|
| Each party's lawyers and experts | Usually borne by that party |
| Adjudicator's fees and expenses | May be allocated under a valid contract term |
| Party-cost agreement before notice | Generally ineffective |
| Written agreement after notice | May confer party-cost jurisdiction |
| Both sides request costs | Check whether this forms a clear post-notice agreement |
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