UK: The Effect Of The Human Rights Act On Adjudication

One of the most relevant aspects of the HRA is that it makes it unlawful for a public authority to act in a way that contravenes Convention rights, unless that authority was acting strictly in accordance with the requirements of the relevant legislation, and in this context a public authority includes a court or tribunal.

Adjudicators must comply with the HRA if they are considered to be a tribunal or public body. In Bryan v. UK [1995], the European Court of Human Rights held that a planning inspector was a tribunal. Furthermore, in Van De Hurk v. Netherlands [1994], the Court held that any body that was able to provide a binding decision that could not be challenged by a non-judicial body was a tribunal. As Section 108(3) of the Construction Act makes adjudicators’ decisions binding, except if they are challenged by a court or arbitrator, it follows that adjudicators must be considered tribunals and therefore subject to the HRA.

A schedule to the HRA sets out a list of the rights and freedoms in the legislation. The principal rights are as follows:

• Fair hearing: there must be a fair balance between the parties with each side having a reasonable opportunity to present their case;
• Public hearing;
• Independent and impartial tribunal; and
• Public pronouncement of the judgment.

If a party to an adjudication believes that one or more of these rights has been infringed, the following options may be available:

• It may be used as a defence against the claim in any enforcement proceedings;
• Separate proceedings, in the form of an injunction restraining the adjudicator from continuing with the adjudication or a judicial review of the decision, may be issued within one year of the alleged infringement; or
• Damages may be claimed against the adjudicator: the adjudicator currently enjoys contractual immunity under the provisions of the Construction Act, however such immunity could be regarded as being incompatible with the provisions of the HRA.

With regard to the provision of a fair hearing, each party must have a reasonable opportunity of presenting his or her case. It is arguable that the speed with which the adjudication process necessarily progresses may contravene this requirement.

Furthermore the HRA requires reasons for a decision to be given if sought by the parties and that the judgment be made publicly available. Nominating bodies may therefore need to consider whether to place the decisions of adjudicators in a public register.

There are likely to be a number of adjudications in which rights under Article 6 of the Convention are identified, and which therefore fall within the ambit of the HRA. However, it is unlikely that all the rights will be enforced in every adjudication. Commentators have suggested that the principle of proportionality should be applied, which allows for a balance between on one side, the interests of the community, and on the other, the requirements of the individual. This principle may have the effect that courts will insist upon the adjudication process recognising and giving effect to some but not all of the Convention rights.

Recent case law gives some indication of the future for the adjudication process.

• The adjudicator must not communicate with one party without relaying the substance of this communication to the other parties:

This issue was discussed in the case of Discain Project Services Ltd v. Opecprime Developments Ltd [2000] 8 BLR 402. The judge held that the adjudicator’s decision was unenforceable as he had communicated with one party without informing the other party of the substance of these discussions. This was held to contravene the rules of natural justice.

Similarly, in the recent case of Glencot Development and Design Co Ltd v. Ben Barrett & Son (Contractors) Ltd (Technology and Construction Court (13.02.01)), the adjudicator became involved in settlement negotiations between the parties prior to the adjudication; this comprised undertaking private discussions with each party. It was held that there was a real possibility of the adjudicator being biased as a result.

• The adjudicator must make available to a party any information obtained from the other party; failure to do so will be interpreted as partiality:

In Woods Hardwick Limited v. Chiltern Air Conditioning (2000) CILL 1652, the judge held that the adjudicator had failed to disclose to one of the parties information he had received from both the other party and third parties to the dispute. This was held as a sign of partiality. The judge stated that:

However, other cases appear to suggest that adjudicators should have more free reign when it comes to investigating points of law and fact.

• In the case of Karl Construction (Scotland) Limited v. Sweeney Support Engineering (Scotland) Limited (unreported), the adjudicator took it upon herself to investigate a number of points which were not actually raised by the parties themselves. For example, she investigated the payment mechanism of the contract. The judge in this case decided that these points were relevant to the decision and therefore held that this was not a breach of natural justice.

It remains uncertain whether or not the adjudication process will fall within the ambit of the HRA. There is indeed a difference of opinion within the TCC. Recent cases, such as Woods and Discain, would suggest that challenges to the decisions and procedures of adjudicators will increase. Such challenges will be based on alleged breaches of natural justice. However, adjudicators have always been required to act fairly and impartially, and the HRA actually imposes few other obligations in this respect. The area in which it may have a noticeable effect is in the determination by the adjudicator of facts and law. Prior to the HRA the adjudicator was permitted to take the initiative in ascertaining such facts and legal issues necessary to determine the dispute. It remains to be seen whether or not the HRA will limit the way in which adjudicators operate in this respect.

"© Herbert Smith 2002

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