Austin Hall Building Ltd -v- Buckland Securities Ltd
Adjudication does not infringe the Human Rights Act 1998 or the European Convention on Human Rights and the rules of natural justice apply to adjudications
11 April, 2001
The contract was entered into before the Human Rights Act 1998 came into force. In opposing the application for the enforcement of the adjudicator's decision, the employer raised various points relying on the European Convention on Human Rights and made a frontal assault on the system of statutory adjudication established by the Housing Grants, Construction and Regeneration Act 1996. The employer contended that it had been denied its right to a fair and public hearing within a reasonable time in accordance with article 6 of the Convention, a proper and equal opportunity to present its case, a reasonable time within which to respond to the contractor's case and a public hearing. Lastly section 108(2) of the Construction Act and the procedure and 28 days timetable which any adjudicator was required to adopt under it was inherently unfair and contrary to article 6 with the result that the court ought not to give effect to the decision. Judge Bowsher rejected all these contentions. An adjudicator is not a "public authority" within the meaning of the Human Rights Act and is therefore not bound (as are public authorities) by section 6(1) not to act in a way which was incompatible with a Convention Right. This was on the basis that adjudication proceedings are not legal proceedings (but are rather a process designed to avoid the need for legal proceedings). If, however, an adjudicator is a "public authority" within the meaning of section 6(1), consideration of the adjudication process as a whole, including any court proceedings necessary to enforce the decision, means that there would necessarily be a public hearing before the decision was enforced in accordance with the requirements of article 6 of the Convention. Finally the judge held that the rules of natural justice apply to adjudications subject to limitations such as there being no requirement for a public hearing or pronouncement of the decision. In the event of the contract not containing a term similar to paragraph 17 of the Scheme for Construction Contracts, such a term is to be implied. Advice Note This was the first case in which the compatibility of adjudication with human rights legislation was challenged. Judge Bowsher's emphatic rejection of this challenge and his statement that the rules of natural justice apply to adjudications have not been the subject of subsequent criticism.