Adjudication
The examples and perspective in this article deal primarily with the English-speaking world and do not represent a worldwide view of the subject. (May 2023) |
Adjudication is the legal process by which an
Adjudication can also refer to the processes at
Legal processes
Adjudication may be defined as "the
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.[citation needed] 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 [4] 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.[5]
In NSW, the 2016 case of Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd[6] has allowed an adjudicator's determination for a non-jurisdictional error to be overturned through judicial review.[6] The case went against Brodyn Pty Ltd v Davenport (2004),[7] 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
Builders, sub-contractors and suppliers need to carefully choose a nominating authority to which they make an adjudication application.
United Kingdom
The relevant
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
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".[12]
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".
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.[13] 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,[14] and the term "'smash and grab' adjudication" has been used in relation to several adjudication decisions regarding liability for interim payment of such claims.[15]
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,[16] but where the adjudicator went outside the scope of the adjudication referred to them, their comments were not a binding part of the ruling.[17]
In relation to a 2012 case, Herbosh-Kiere Marine Contractors Ltd v
In the same case, reference is made to a 2006
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
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
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
See also
- Administrative law
- Alternative dispute resolution (e.g. Arbitration, Mediation)
- Collateral estoppel
- Dispute resolution (e.g. Lawsuit)
- Jurisprudence
- Res judicata
Notes
- ^ 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".[9]
References
- ^ "Glossary for Administrative Hearings". Washington State Office of Administrative Hearings. Archived from the original on 4 March 2016. Retrieved 16 July 2015.
- ISBN 9780787663742.
- ^ 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
- ^ Building and Construction Industry Security of Payment Act 1999, accessed 25 June 2018
- ^ Home Building Act 1989, accessed 25 June 2018
- ^ a b "NSW Caselaw, Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770 (15 June 2016)". Supreme Court of New South Wales. Retrieved 2 December 2016.[permanent dead link]
- ^ "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.
- ^ 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.
- ^ England and Wales High Court (Technology and Construction Court), Sprunt Ltd v London Borough of Camden [2011] EWHC 3191 (TCC), paragraph 29, delivered 6 December 2011, accessed 22 November 2023
- ^ a b UK Legislation, The Scheme for Construction Contracts (England and Wales) Regulations 1998, SI 649/1998, made 6 March 1998, accessed 5 April 2021
- ^ UK Legislation, Scheme for Construction Contracts (Scotland) Regulations 1998, SI 687/1998
- ^ Lloyd QC, in the unreported decision of Sindall v Solland, June 2001, quoted in England and Wales High Court (Technology and Construction Court), Orange EBS Ltd. v ABB Ltd. [2003] EWHC 1187, paragraph 24, delivered 22 May 2003, accessed 9 January 2024
- ^ Addleshaw Goddard (2019), More on True Value Adjudications, accessed 12 November 2021
- ^ 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
- ^ 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
- ^ 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
- ^ Fenwick Elliott, Redwing Construction Limited v Charles Wishart, case reference: [2010] EWHC 3366 (TCC), published 22 December 2010, accessed 23 September 2023
- ^ a b c 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
- ^ Molloy, M., Adjudication "torpedoed" by adjudicator’s frolic, published 14 February 2012, accessed 16 November 2022
- ^ England and Wales Court of Appeal (Civil Division), Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358, delivered 16 November 2005, accessed 21 AUgust 2023
- ^ "Fiscal Year 2011: Homeland Security Grant Program Supplemental Resource: Preventive Radiological / Nuclear Detection Guidance". U.S. Department of Homeland Security. p. 11.
- ^ "§8-271 Definitions". Arizona Revised Statues. Justia. 2005. Retrieved June 9, 2017.
- ^ 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)[1]
- 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).
- 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