Adjudication & the British Courts
Lloyd, Humphrey, Dispute Resolution Journal
The international ADR movement has apawned a hybrid process called adjudication in the United Kingdom. A mechanism that is often binding, adjudication has features that are similar to the early neutral evaluation and arbitration processes as practiced in the United States. In the following piece, Humphrey Lloyd discusses the nature, origins, advantages, and disadvantages of adjudication as it applies to the construction industry. He also discusses the impact of the UK's Housing Grants, Construction and Regeneration Act on the adjudication process.
The author is a judge of the Technology and Construction Court in London, which is a part of the High Court of Justice of England and Wales. Prior to becoming a judge in 1993, he was a barrister and arbitrator specializing in construction disputes.
This article is based on a paper presented by the author at a conference in Hong Kong in November 2000, and was later published in the April 2001 issue of the International Construction Law Review (ICLR).
This article describes the system of adjudication as it is now employed in Great Britain as provided by Part II of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA or the Act). The system applies to contracts made after May 1, 1998. Part II of the Act applies only to work done in Great Britain, not in Northern Ireland.
The law relating to adjudication is evolving primarily as a result of applications for summary judgment. On such applications the outcome may only be that the defendant has realistic prospects of success in its proposed defense, not that the defense is right on the facts or in law. Conversely, if the application succeeds, the claimant's claim is upheld as right on the facts and in law. In many respects, therefore, the law and practice cannot be regarded as settled. Cases in the courts do not provide a foundation for a conclusion as to whether or not adjudication is working satisfactorily. I refer to them only to illustrate points.
In this article, I am not expressing any view about the law, nor about the policy of adjudication in the UK forum. Policy is for the construction industry.
Nature and Origins
Adjudication as discussed in this article is somewhat of a misnomer. A judge or arbitrator adjudicates. In this sense, adjudication is or should therefore be synonymous with a judicial process but it is not.
For most of the construction industry in the United Kingdom, adjudication now means a process by which within a short and defined time and with a curtailed procedure left primarily to the adjudicator, all disputes under most construction contracts have to be presented to and decided by a person who will not be the arbitrator or the judge (unless of course the parties agree). The decision is binding (and is swiftly enforceable) until the dispute is considered and decided by the ultimate tribunal. The dispute is then considered on its own merits, without regard to the decision of the adjudicator so that there is, in this sense, no appeal from the adjudicator.
The aim of adjudication is simple: a dispute is resolved in such a manner that the parties perforce have to put it behind them and get on with the contract or with the remainder of their relationship (if either still exists). The decision of an adjudicator may also give the parties a better idea of what the decision of the ultimate tribunal might be-whether an arbitrator or a judge. Obviously the reliability of any forecast based upon that decision in turn depends upon the quality of the decision and the material and time available to the adjudicator, as well as, of course, the ability of the person involved.
It is therefore relevant at this stage to note that in 2000, on the second anniversary of the introduction of statutory adjudication,' Building (a leading construction industry journal in the UK) carried out, in conjunction with the wellknown firm of solicitors, CMS Cameron McKenna, a survey of contractors, consultants, subcontractors, and employers. …