Courts must play waiting game to make Human Rights Act work
If, as I have suggested, the Human Rights Act (HRA) applies to adjudication (AJ 29.3.01), what then?
How are the courts going to respond to the point that an adjudicator's decision should not be enforced because the adjudication was not fair, there was no public hearing, the timescale was unreasonably short and the adjudicator was not independent, in contravention of the parities fundamental right to a fair trial now enshrined in article 6 of the HRA?
The scheme of the new legislation is such that the courts cannot strike down the adjudication provisions of the Housing Grants, Construction and Regeneration Act (HGCRA).
Instead, they can only state that the legislation is incompatible with the HRA and wait for parliament to revise the statute. In the meantime, the courts must continue to apply the HGCRA, whatever they may think of it.
Experience shows that, whatever the courts may have thought of adjudication and the act of parliament that imposed it upon the construction industry, they have got right behind it and supported it all the way. This suggests that the courts would rather continue to make adjudication work in harmony with the HRA than throw confusion into the camp by issuing adjudication with the equivalent of a judicial yellow card.
Not for the first time have the courts been stuck with a regime that is, on the face of it, unworkable. Other examples include the automatic directions applied by the County Courts that tended to take parties by surprise by striking out those cases that had not been set down for trial within a matter of months.
Rather than declare the directions a nonsense, the Court of Appeal struggled to make sense of them with case after case, hoping no doubt that they would soon be overtaken by Lord Woolf 's wholesale reform of civil procedure in the courts; as indeed they were. Similarly, despite the fact the government required adjudicator's decisions to be enforced by a strange mishmash of procedures involving the HGCRA, the supporting Scheme for Construction Contracts and a guest appearance by an unlikely provision of the Arbitration Act, the courts allowed them to be enforced by the tried-andtested route of summary judgment.
When considered against this background the few decisions of the Technology and Construction Court that touch on the subject can be better understood. The cases of Elanay Contracts Limited v Vestry (2001), and Maymac Environmental Systems v Faraday Building Services (2000), suggest adjudication should not be judged by the standards of the HRA because the adjudicator's decision is not finally binding.
Adjudicators themselves can reduce the risk of HRA points being taken against them, particularly with regard to the question of their independence and the stringent time scales. The HRA calls not only for an impartial tribunal but one that is independent of the executive and the parties. As the world gets smaller, and the world of construction dispute resolution particularly so, it becomes more and more difficult to find a tribunal that has not worked for, with or against one or other of the parties or is connected with them in some way. Adjudicators should consider the question of independence carefully at the time of their appointment.
If a referring party ambushes the respondent with 20 files of detailed material prepared over many months in support of a claim, a 28-day time scale is bound to deny a reasonable opportunity to respond. Rather than push all parties, including themselves, to the brink in trying to assimilate enormous amounts of complex material in so short a time, adjudicators could indicate to the referring party that they should agree to extend the time limits because the time available is insufficient for the referring party to prove their case. In those circumstances, the adjudicator would have no alternative but to make no finding or to dismiss the claim.
And why not hold those adjudication hearings in public? Just put a sign up outside the site hut: 'Adjudication hearing in progress - public welcome, ' and people will be killed in the rush.