Adjudication, as we know it, falls foul of the Human Rights Act
Does the Human Rights Act (HRA) apply to adjudication? This seems to be the hot topic of the moment and one upon which all and sundry have expressed views of late, particularly in rival publications. I was particularly moved by adjudicator Tony Bingham's failure to gain entry to Castle Human Rights (Building 22.9.00).
Views vary from 'Don't be ridiculous! An adjudicator is not a 'public authority' Next you'll be suggesting that the much-maligned certifier is constrained by the European Convention, ' to 'If adjudicators have power to decide legal disputes with binding effect for the parties, they are a tribunal and if they are a tribunal the HRA applies to them.'
You will remember from my column last week that the HRA requires public authorities to act in a way that is incompatible with convention rights. On the face of it, adjudicators are a far cry from public authorities such as local and government bodies and the police. Although the Act does not define 'public authority' it does include 'court or tribunal' and there are many who would agree that adjudicators are a 'tribunal'.
Furthermore, adjudicators are creatures of statute. They were created by the government, born out of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA) and imposed on parties to construction contracts, like it or not. If you sign up to one of the standard forms, the adjudication process is included as a matter of contract. If you avoid a standard form of contract, the adjudication process is imposed on you by the government's Scheme for Construction Contracts. Once a dispute arises, the claimant can choose between adjudication, arbitration or litigation. But if the claimant chooses adjudication, the respondent has no choice but to take part. There are good arguments for saying that an adjudicator is a 'public authority' within the meaning of the HRA.
Conversely, it has been suggested that an adjudicator is no more than a private contract administrator, such as an architect or an engineer.
Leaving aside the fact contract administrators are actually named in the contract and are, therefore, known and agreed by the parties, whereas adjudicators are seldom agreed in advance, contract administrators can only decide a limited range of disputes under the contract. An architect can, for example, decide when the works ought to have been completed, how much delay is culpable and what liquidated damages are payable. An architect can do this because the contract says they can. An architect cannot require either the employer or the contractor to, for example, pay damages for breach of contract. By contrast, an adjudicator can do whatever he or she likes.
The question 'does the HRA apply to adjudication?' has been considered by the Technology and Construction Courts, but only in passing. In Elany Contracts Limited v The Vestry (2001) His Honour Judge Havery found that the Act did not apply because an adjudicator's determination of the parties' rights was not a final determination, it was provisional and could be reopened by the courts or in arbitration. This is, of course, true.
The trouble with the judge's analysis is that nowhere in the HRA do you find the words 'final' or 'finally determinative' or 'final and binding'. The Act and supporting case law simply require the parties' rights to be 'determined' and for a tribunal's findings to be 'binding'. The HGCRA expressly provides that an adjudicator's decision is binding - that is why it can be so speedily enforced by the courts.
If the HRA was to apply to adjudication, Article 6 entitles every party to an adjudication to a fair and public hearing within a reasonable time by an independent and impartial tribunal. As presently practised, adjudication falls foul of Article 6 on several counts: no public hearing; 28-day time scale is too tight for many cases; adjudicator required by the HGCR Act to be impartial but not independent.
As Judge Havery pointed out, if the HRA does apply, it would drive a coach and horses through the adjudication process. It seems that he would rather read into the HRA words things that are simply not there than let that happen.