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Adjudicators are Not Public Authorities

Since adjudication was introduced for construction disputes in 1998, concerns have been expressed within the industry to the effect that quick justice may be justice denied. Once the Human Rights Act came into force in October 2000, it was expected that the provisions would be used to challenge the adjudication process. Even before the Act came into force, Judge Havery considered the issue in Elanay v The Vestry (August 2000). Judge Havery took the view that the European Convention on Human Rights had no effect as an adjudication award is temporary in effect.

The issue was raised, as the court said, by a 'frontal assault' in the case of Austin Hall v Buckland (April 2001). In this case, Judge Bowsher reviewed the Act but decided it had no effect for three principal reasons:

The Act applies to public authorities which include courts or tribunals but not adjudicators. Their decision are preliminary steps before court proceedings for enforcement are taken.

The 28 day statutory time limit for a decision cannot be questioned as, even if adjudicators are public bodies, they cannot act differently by virtue of the statutory requirements. In such cases the court does not have to consider whether such a body has breached human rights. Although the Act provides for the right to a public hearing, the claimant had waived any such rights by not seeking a public hearing in this case. It would of course be rare for a party to an adjudication to seek any form of public hearing and it not clear how such a hearing could in practice be convened.

For the present, the scope for application of the Human Rights Act appears limited although it is to be noted that in Austin Hall the claimant had submitted that the statutory adjudication process is generally incompatible with the rights provided by the Human Rights Act. Judge Bowsher declined to consider this point. as notice of it had not been given to the Crown and there was no evidence of the workings of adjudication in general. It remains to be seen whether this point will, in due course, be argued in an even more frontal assault on the adjudication process.

Judge Bowsher did, however, note that the adjudicator has a statutory duty to act impartially and must therefore comply with the rules of natural justice. In another decision on the same day Discain v Opecprime this point was made even more forcefully where Judge Bowsher refused to enforce an adjudicator's decision where matters which he had discussed with one party in a telephone conversation were not reported to the other. It therefore seems that this narrow ground of challenge is available to the parties but, at least for the present. wider grounds of challenge cannot succeed.

Simmons & Simmons, Construction Newsletter
May 2001

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