No sooner is the ink dry on the prophesy that the Human Rights Act (HRA) did indeed apply to adjudication - and that both the statutory provisions of the Housing Grants Construction and Regeneration Act (HGCRA) and the antics of the adjudicator fell foul of the HRA's requirements for 'a fair and public hearing within a reasonable time by an independent and impartial tribunal'than the courts prove you wrong.
The defendant's arguments in Austin Hall Building Limited v Buckland Securities Limited (11.4.01) made, for the first time, a full-frontal assault on the whole system of adjudication and the HGCRA.An adjudicator - who was, unusually, not criticised by either party or the judge (in fact, was praised by all concerned) - had decided that Buckland Securities should pay Austin Hall some £80,000 outstanding on its final account.
However, Buckland demurred and instead of raising the usual arguments about want of jurisdiction in general or the conduct of the adjudicator in particular, Buckland invoked the Human Rights Act. It claimed the whole damned ball game was inherently unfair and contrary to its human rights as enshrined by Article 6 of the HRA, and that the court should give no effect to the adjudicator's decision.
The firm complained that 28-day time limits gave the referring party the whip hand and enabled them to ambush the unsuspecting receiving party with a detailed case prepared over a period of many months.
The fact that Buckland had not actually been ambushed by Austin Hall's reference to adjudication was irrelevant - it was the principle.
Furthermore, Buckland complained, it had not been given a public hearing and the decision had not been pronounced in public. And although it turned out that Buckland had not actually asked for a public hearing, could not give the judge a single instance in which an adjudication had been heard in public, had to accept that it had waived any right it may have had to a public hearing and more or less owned up to the fact that it had not even thought of the point until the judge mentioned it during the hearing, it still maintained that its human rights had been violated.
The parties accepted that, given the provisions of the HGCRA, the adjudicator had no alternative but to impose the 28-day time limit and could not have acted differently. The judge used this simple fact and applied a hitherto littlediscussed provision of the HRA, the second limb of Article 6, which says, in effect, that all the requirements for a fair hearing within a reasonable time by an impartial tribunal go out of the window if, as a result of primary legislation, the tribunal could not have acted differently.
The HGCRA required the adjudicator to act as he did - he could not have acted differently.
'Bingo!' said the judge: even if the HRA did apply to adjudication, the adjudicator was protected by Article 6(2). 'Not so fast, ' countered Buckland.
'What about the lack of a public hearing?' Here the adjudicator had a real choice and he chose to decide the dispute in private, in flagrant breach of natural justice and fundamental human rights. The judge asked the following key questions: was an adjudicator a 'public authority' and a 'tribunal', as required by the HRA?
Had the parties waived any right to a public hearing?
He compared adjudication with the courts.Unlike a court decision, an adjudicator's judgment can't be enforced without further intervention. An adjudicator's decision can only be enforced by the courts. The adjudicator's decision should not be considered in isolation but should be looked at as part of the larger picture.
Importantly, it was necessary to have a public hearing in court before the private decision could be enforced. Thus, although he found the matter finely balanced and said that it would have been helpful to be able to find out more about what was happening in adjudication generally, he found that the HRA did not apply, that if it did there had been no breach by the adjudicator and that, if there had, Buckland had waived its right to complain.