Austin Hall v Buckland Securities Ltd [2001] HT 00 477

This summary was provided by CMS Cameron McKenna LLP.

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Adjudication is not subject to the Human Rights Act 1998. An adjudicator is not a public authority since he is not a tribunal deciding legal proceedings. Further, the Court should also take into account the Court enforcement proceedings when considering if there has been a breach of a Convention right

HHJ Bowsher QC, Technology & Construction Court

11 April 2001

B employed A to carry out building works on the terms of the JCT Agreement for Minor Building Works. B did not pay A's final account so A referred the dispute to adjudication. The adjudicator found in A's favour. A applied for summary judgment to enforce the adjudicator's decision.

This was the first "frontal assault" on adjudication under the Human Rights Act 1998 ("HRA"). B resisted enforcement proceedings on the grounds that that the adjudication procedure was inherently unfair and contrary to Article 6 of the European Convention on Human Rights (the right to a fair and public trial). It claimed that the statutory requirement of requiring the adjudicator to give a decision within 28 days was manifestly unfair, that it had not had a proper opportunity to put its case, and that there had been no public hearing and no public judgment.

The Court decided that s6(2) of the HRA was an answer to almost the whole of B's case. This provides that an otherwise unlawful act by a public authority would not be unlawful if the authority could not have acted differently as a result of primary legislation (here, the HGCRA dictating the short timetable). However, this did not address the possibility of there being a public hearing and judgment.

The Court held that it was possible to waive Convention rights, and here the parties had waived the right to a public hearing and judgment by failing to request them.

Although a court or tribunal was a "public authority" under HRA, the Court held that an adjudicator was not a "public authority". The Court found that an adjudicator's decision was not like a judgment or award, and was not enforceable in itself. S108 of HGCRA differentiated between adjudication and subsequent legal proceedings. It was held that proceedings before an adjudicator were not legal proceedings; they were a process designed to avoid the need for legal proceedings and therefore an adjudicator was not bound by HRA.

The Court also held that adjudication should be considered not just as a decision taken alone but as a whole process including the court proceedings necessary to enforce the adjudicator's decision. Therefore if the judge was wrong in finding that Article 6 of the convention did not apply to adjudicators, the provision of court proceedings necessary to enforce the decision would comply with the Article 6 requirement of a public hearing.

Finally, on the facts of the case, the Court found that B had no sustainable complaint for breach of the Convention and the adjudicator's decision was enforced by summary judgment of the Court.

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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