Elanay Contracts Ltd v The Vestry [2000] HT 00264

This summary was provided by CMS Cameron McKenna LLP.

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Adjudication is not subject to Article 6 of the European Convention on Human Rights because it does not involve a final determination of civil rights.

HHJ Richard Havery QC, Technology and Construction Court

30 August 2000

E applied to enforce an adjudicator's award by summary judgment. However, it served a fully pleaded Particulars of Claim, including reference to terms of the contract. V served a Defence and Counterclaim. V also opposed the application for summary judgment.

V's first argument was that if summary judgment was awarded, it would be estopped from relying upon issues raised in the Defence and Counterclaim in future proceedings. The Judge held that this was incorrect, on the basis that if there was to be an issue estoppel, the particular issue had to be a necessary ingredient in the cause of action, and to have been litigated and decided. In this case, it was unnecessary for E to plead its claim in the detailed way that it had, as the basis of the claim was simply the adjudicator's award.

V also argued that under the European Convention on Human Rights, Article 6, there is a requirement for equality of arms between the parties (note that the Human Rights Act was not in force when this case was decided). V said that there was inequality of arms here, as V had difficulties owing to personal problems of its principal representative and documents were delivered late by E. The Judge noted that the procedure had to be completed within 35 days, and said "That may be inherently unfair, no doubt it is."

The Judge noted that proceedings before an adjudicator are not in public, whereas under Article 6 a hearing should be in public. If Article 6 did apply, it would "drive a coach and horses through" the HGCRA. The question was therefore whether Article 6 applied to an adjudicator's award. The Judge concluded that Article 6 did not apply to an adjudicator's award or to proceedings before an adjudicator because although there was a determination of civil rights, an adjudicator's award was

"not in any sense a final determination. ... I am not talking about first instance or appeals, but merely that the determination is itself provisional in the sense that the matter can be re-opened."

Therefore, the Court awarded E summary judgment of the adjudicator's award.

Adjudication is not subject to Article 6 of the European Convention on Human Rights because it does not involve a final determination of civil rights.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

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