Adjudication

See also: Adjudicator

Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the parties involved. ^[1]

Adjudication can also refer to the processes at dance competitions, in television game shows and at other competitive forums, by which competitors are evaluated and ranked and a winner is found.

Legal processes

Adjudication may be defined as "the legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved; it may be equivalent to a determination. It indicates that the claims of all the parties there to have been considered and set at rest." ^[2] In some cases, an application for adjudication is an alternative legal process instead of applying for a court hearing. ^[3]

Construction law

Australia

Each state and territory has enacted security of payment legislation which provide for adjudication of progress construction claims, starting with New South Wales in 1999. There is very little harmony between the legislation in each jurisdiction regarding the scope of contract covered and the adjudication procedure. ^[4] However, in all jurisdictions, adjudications are interim pending final resolution of the dispute under the relevant terms of the contract.

New South Wales

The Building and Construction Industry Security of Payment Act 1999 ^[5] came into effect in New South Wales on 26 March 2000 and applies to all construction contracts commenced on or after that date. It is not possible to contract out of the legislation. Amendments to the Act made in 2013 are not retrospective, however, earlier amendments are. The Act does not apply to mining work, however, construction work ancillary to the operation of a mine is covered. The Act also does not apply to work undertaken for a resident owner within the meaning of the Home Building Act 1989. ^[6]

In NSW, the 2016 case of Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd  ^[7] has allowed an adjudicator's determination for a non-jurisdictional error to be overturned through judicial review. ^[7] The case went against Brodyn Pty Ltd v Davenport (2004), ^[8] which had held that judicial intervention was limited to cases of a breach of essential and basic requirements.

Queensland

The Building and Construction Industry Payments Act 2004 (BCIPA) came into effect in Queensland in October, 2004. Through a statutory-based adjudication process a claimant can seek to resolve payment on account disputes. The act covers construction, and related supply of goods and services, contracts, whether written or verbal. BCIPA is regulated by the Building and Construction Industry Payments Agency, a branch of the Queensland Building Services.

Victoria

Adjudication is a relatively new process introduced by the government of Victoria, Australia, to allow for the rapid determination of progress claims under building contracts or sub-contracts and contracts for the supply of goods or services in the building industry. This process was designed to ensure cash flow to businesses in the building industry, without parties getting tied up in lengthy and expensive litigation or arbitration. It is regulated by the Building and Construction Industry Security of Payment Act 2002.

Builders, sub-contractors and suppliers need to carefully choose a nominating authority to which they make an adjudication application.

United Kingdom

The relevant legislation in regard to construction in the United Kingdom is the Housing Grants, Construction and Regeneration Act 1996 (1996 Chapter 53), ^[9] later amended by Part 8 of the Local Democracy, Economic Development and Construction Act 2009.

Any party to a construction contract has the right to refer a dispute arising under the contract to a third party for adjudication, whose decision shall be binding unless the courts or an arbitrator have already made a determination on the referred issue. The Act does not define "adjudication" or an "adjudicator", but an adjudicator's obligation is to act "impartially" (section 108(2)(e)). The parties can agree between themselves who will undertake the adjudication, but where they cannot agree, either party may ask an Adjudicator Nominating Body (ANB) to appoint one. ^[10] The "Scheme for Construction Contracts" set up under the Scheme for Construction Contracts (England and Wales) Regulations 1998 contains a set of adjudication provisions which are to apply to a construction contract unless the contract itself includes arrangements for adjudication which comply in full with statutory requirements. ^{[lower-alpha 1]}

^[12] In Scotland, the Scheme for Construction Contracts (Scotland) Regulations 1998 apply. ^[13]

For there to be a dispute capable of being addressed by adjudication, "it must be clear that a point has emerged from the process of discussion or negotiation that has ended and that there is something which needs to be decided". ^{[lower-alpha 2]}

Section 108(3) of the 1996 Act and paragraph 23(2) of the Scheme for Construction Contracts state that "the decision of the adjudicator shall be binding on the parties, and they shall comply with it until the dispute is finally determined by legal proceedings, by arbitration ... or by agreement between the parties". ^[12] In the case of Aspect Contracts (Asbestos) Limited (Respondent) v Higgins Construction Plc (Appellant), heard in 2015, the Supreme Court of England and Wales argued that the wording would have been clearer if had said "unless and until" instead of merely "until". ^[3]

The phrase "true value adjudication" is sometimes used in relation to the role of an adjudicator, meaning that the adjudicator is asked to determine the true value of a completed construction where this may be different from the value claimed by the contractor and/or paid by the client. ^[15] The term "smash and grab" claim refers to the practice of submitting a large interim payment application at the end of the construction phase of a project, but before completion of the final account, ^[16] and the term "'smash and grab' adjudication" has been used in relation to several adjudication decisions regarding liability for interim payment of such claims. ^[17]

Selected cases

In a 2010 case involving two consecutive adjudications in relation to a construction contract for homeowner Charles Wishart, the High Court allowed the second adjudicator's ruling on an issue which the first adjudicator had commented on and purported to have resolved, but which was not part of, and "wholly unnecessary" to resolve as far as the initial adjudication was concerned. In other circumstances, an adjudicator's ruling is binding and a point which has been resolved cannot be raised again, ^[18] but where the adjudicator went outside the scope of the adjudication referred to them, their comments were not a binding part of the ruling. ^[19]

In relation to a 2012 case, Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board , ^[20] Matt Molloy notes that there can be a distinction between "statutory adjudication", applying the processes set out in legislation, and "contractual adjudication", where a complainant exercises a right provided for in their contract. ^[21] In this case, which related to a wreck-removal agreement requiring the contractor to remove the remains of a boat sunk to stop torpedoes being fired into Dover Harbour during World War I, the court determined that the adjudicator had exceeded his jurisdiction and the adjudicator's ruling was therefore not upheld. ^{[20] : para. 35}

In the same case, reference is made to a 2006 Court of Appeal ruling, Carillion Construction v Devonport Royal Dockyard , in which Lord Justice Chadwick reminded litigants that in the UK context, "the majority of adjudicators are not chosen for their expertise as lawyers. Their skills are as likely (if not more likely) to lie in other disciplines. The task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The task of the adjudicator is to find an interim solution which meets the needs of the case." ^{[20] [22]}

Healthcare

"Claims adjudication" is a phrase used in the insurance industry to refer to the process of paying claims submitted or denying them after comparing claims to the benefit or coverage requirements. The adjudication process consists of receiving a claim from an insured person and then utilizing software to process claims and make a decision or doing so manually. If it is done automatically using software or a web-based subscription, the claim process is called auto-adjudication. Automating claims often improve efficiency and reduce expenses required for manual claims adjudication. Many claims are submitted on paper and are processed manually by insurance workers.

After the claims adjudication process is complete, the insurance company often sends a letter to the person filing the claim describing the outcome. The letter, which is sometimes referred to as remittance advice, includes a statement as to whether the claim was denied or approved. If the company denied the claim, it has to provide an explanation for the reason why under regional laws. The company also often sends an explanation of benefits that includes detailed information about how each service included in the claim was settled. Insurance companies will then send out payments to the providers if the claims are approved or to the provider's billing service.

The process of claims adjudication, in this context, is also called "medical billing advocacy".

Background investigations (employment)

In the United States, adjudication is the process directly following a background investigation where the investigation results are reviewed to determine whether a candidate should be awarded a security clearance, or is suitable for a public trust position, which is a job that requires a very knowledgeable and responsible person, often related to national security. It may be determined that the person is not suitable for a public trust position, but is suitable for a non-sensitive position. However, a person may be deemed unsuitable for any position.

From the United States Department of the Navy Central Adjudication Facility: "Adjudication is the review and consideration of all available information to ensure an individual's loyalty, reliability, and trustworthiness are such that entrusting an individual with national security information or assigning an individual to sensitive duties is clearly in the best interest of national security."

Emergency response

Adjudication is the "process of identifying, with reasonable certainty, the type or nature of material or device that set off an alarm and assessing the potential threat that the material or device might pose with corresponding implications for the need to take further action." ^[23]

Referring to a minor

Referring to a minor, the term adjudicated can refer to children that are under a court's jurisdiction, usually as a result of having engaged in delinquent behavior and not having a legal guardian that could be entrusted with being responsible for him or her. A child dependency or neglect adjudication can also result in a determination that a child is in need of services. Different US states have different processes for declaring a child as adjudicated. Arizona state law defines a dually adjudicated child as "a child who is found to be dependent or temporarily subject to court jurisdiction pending an adjudication of a dependency petition and who is alleged or found to have committed a delinquent or incorrigible act". ^[24] According to Illinois state law, "adjudicated" means that the Juvenile Court has entered an order declaring that a child "is neglected, abused, dependent, a minor requiring authoritative intervention, a delinquent minor or an addicted minor". ^[25]

See also

• Administrative law
• Alternative dispute resolution (e.g. Arbitration, Mediation)
• Collateral estoppel
• Dispute resolution (e.g. Lawsuit)
• Jurisprudence
• Res judicata

Notes

1. Judge Peter Coulson regards it as "resolved" that where there is any difference between contractual adjudication arrangements and statutory requirements, the contractual arrangements fall and the Scheme is applied "in its entirety". ^[11]
2. Lloyd QC, in the unreported decision of Sindall v Solland, June 2001, quoted in High Court (Technology and Construction Court). ^[14]

References

1. "Glossary for Administrative Hearings". Washington State Office of Administrative Hearings. Archived from the original on 4 March 2016. Retrieved 16 July 2015.
2. Lehman, Jeffrey; Phelps, Shirelle (2005). West's Encyclopedia of American Law, Vol. 1 (2 ed.). Detroit: Thomson/Gale. p. 118. ISBN   9780787663742.
3. Supreme Court of England and Wales (2015), Aspect Contracts (Asbestos) Limited (Respondent) v Higgins Construction Plc (Appellant), Trinity Term [2015] UKSC 38, paragraph 15, accessed 5 April 2021
4. McNair, Damian; PwC Australia (January 2016), International Best Legal Practice in Project and Construction Agreements: Security of payment (PDF), PwC, archived from the original (PDF) on 8 November 2022
5. Building and Construction Industry Security of Payment Act 1999, accessed 25 June 2018
6. Home Building Act 1989, accessed 25 June 2018
7. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770 (15 June 2016), Supreme Court New South Wales: Equity – Technology and Construction
8. "NSW Caselaw, Brodyn Pty. Ltd. t/as Time Cost and Quality v. Davenport & Anor. [2004] NSWCA 394 (3 November 2004)". Supreme Court of New South Wales . Retrieved 2 December 2016.
9. Text of the Housing Grants, Construction and Regeneration Act 1996 (1996 Chapter 53) as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk .
10. Royal Institution of Chartered Surveyors, Adjudication Services, accessed on 1 July 2024
11. Sprunt Ltd v London Borough of Camden [2011] EWHC 3191(TCC) at para. 29(6 December 2011), High Court(England and Wales), accessed 22 November 2023.
12. UK Legislation, The Scheme for Construction Contracts (England and Wales) Regulations 1998, SI 649/1998, made 6 March 1998, accessed 5 April 2021
13. UK Legislation, Scheme for Construction Contracts (Scotland) Regulations 1998, SI 687/1998
14. Orange EBS Ltd. v ABB Ltd. [2003] EWHC 1187(TCC) at para. 24(22 May 2003), High Court(England and Wales)
15. Addleshaw Goddard (2019), More on True Value Adjudications, accessed 12 November 2021
16. England and Wales High Court (Technology and Construction Court), Grove Developments Ltd v S&T (UK) Ltd. (2018) EWHC 123 (TCC), paragraph 13, published 27 February 2018, accessed 16 December 2021
17. Stockill, P., The Future of 'Smash and Grab' Adjudications and what it means for the Construction Industry, Penningtons Manches Cooper LLP, published 23 April 2020, accessed 16 December 2021
18. Benfield Construction v Trudson (Hatton) Ltd. (2008) and Barr Ltd v Klin Investment UK Ltd., 2009, both referred to in Redwing Construction Ltd. v Wishart
19. Fenwick Elliott, Redwing Construction Limited v Charles Wishart, case reference: [2010] EWHC 3366 (TCC), published 22 December 2010, accessed 23 September 2023
20. England and Wales High Court (Technology and Construction Court), Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board (2012) EWHC 84 (TCC), published 26 January 2012, accessed 16 November 2022
21. Molloy, M., Adjudication "torpedoed" by adjudicator's frolic, published 14 February 2012, accessed 16 November 2022
22. Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 (16 November 2005), Court of Appeal(England and Wales) accessed 21 August 2023.
23. "Fiscal Year 2011: Homeland Security Grant Program Supplemental Resource: Preventive Radiological / Nuclear Detection Guidance". U.S. Department of Homeland Security. p. 11.
24. "§8-271 Definitions". Arizona Revised Statues. Justia. 2005. Retrieved June 9, 2017.
25. Illinois Administrative Code, Section 304.2 Definitions". Illinois General Assembly. Retrieved June 9, 2017.

Further reading

• Darren Noble, Users' Guide to Adjudication in Victoria (Anstat 2009)
• Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. (Yale University Press, 1986).
• Gad Barzilai, Communities and Law: Politics and Cultures of Legal Identities (Ann Arbor: University of Michigan Press, 2003).
• Erwin Chemerinsky, Constitutional Law: Principles and Policies (Aspen Publishers, 2006).
• Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 2005, originally 1977).
• Conor Gearty, Principles of Human Rights Adjudication (Oxford University Press, 2005).
• Michael J. Gorr and Sterling Harwood, eds., Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure (Westview Press, 1992).
• Michael J. Gorr and Sterling Harwood, eds., Crime and Punishment: Philosophic Explorations (Wadsworth Publishing Co., 2000; originally Jones and Bartlett Publishers, 1996).
• H.L.A. Hart, The Concept of Law (Oxford University Press, 1961).
• Sterling Harwood, Judicial Activism: A Restrained Defense (Austin & Winfield Publishers, 1993).
• Allan C. Hutchinson, It's All in the Game: A Nonfoundationalist Account of Law and Adjudication (Duke University Press, 2000).
• David Lyons, Ethics and the Rule of Law (Cambridge University Press, 1984).
• David Lyons, Moral Aspects of Legal Theory (Cambridge University Press, 1993).
• John T. Noonan and Kenneth I. Winston, eds., The Responsible Judge: Readings in Judicial Ethics (Praeger Publishers, 1993).
• Kathleen M. Sullivan and Gerald Gunther, Constitutional Law, 15th ed. (Foundation Press, 2004).
• Harry H. Wellington, Interpreting the Constitution: The Supreme Court and the Process of Adjudication (Yale University Press, 1992).

Lectures

• Lecture by Sir Christopher Greenwood entitled International Law in the Age of Adjudication in the Lecture Series of the United Nations Audiovisual Library of International Law
• Lecture by Stephen M. Schwebel entitled The Merits (and Demerits) of International Adjudication and Arbitration in the Lecture Series of the United Nations Audiovisual Library of International Law