Confidentiality In Construction Adjudication

Author:Mr Raymond Mah
Profession:MahWengKwai & Associates
 
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Other than providing a speedy dispute resolution mechanism, the Construction Industry Payment and Adjudication Act 2012 ("CIPAA 2012") offers another feature – confidentiality. This makes adjudication attractive to parties who desire to resolve their construction disputes quickly and quietly.

Section 20 of CIPAA 2012 expressly provides that construction adjudication proceedings shall be confidential, although with limitations and exceptions. There are similar provisions for confidentiality in adjudication proceedings in the United Kingdom1, New Zealand2, Victoria (Australia)3 and Singapore4. This article provides an overview of the confidentiality provision under CIPAA 2012 and the extent to which it applies.

CONFIDENTIALITY OF ADJUDICATION

Section 20 of CIPAA 2012 states that:

"The adjudicator and any party to the dispute shall not disclose any statement, admission or document made or produced for the purposes of adjudication to another person except-

With the consent of the other party; To the extent that the information is already in the public domain; To the extent that disclosure is necessary for the purposes of the enforcement of the adjudication decision or any proceedings in arbitration or the court; or To the extent that disclosure is required for any purpose under this Act or otherwise required in any written law." Section 20 expressly provides that the requirement of confidentiality applies to both the adjudicator and parties in the dispute. However, it does not extend to others involved in the proceedings, such as witnesses and experts called to give evidence.5

The confidentiality provision makes express reference to statements, admissions or documents. In practice, statements, admissions and documents made or produced in the course of adjudication proceedings include the following:

Payment claim and payment response; Notice of adjudication; Adjudication claim, adjudication response and adjudication reply; Written submissions; Documentary evidence; Expert reports; Minutes of hearings and/or meetings; Witness statements; Adjudication decision; and Correspondence between the parties and adjudicator. Although not express, section 20 is worded broadly enough to impose on the parties the obligation to protect the confidentiality of adjudication proceedings both before and after the adjudication decision is reached.

EXCEPTION

As set out in section 20, there are a few exceptions in which disclosure is allowed.

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