The Human Rights Act 1998 ("HRA") incorporates into UK law the European Convention on Human Rights ("the Convention"). Here we assess the potential effects of the HRA on adjudication generally, and more specifically consider whether or not adjudications infringe the right laid down by the HRA to a fair trial.
Right to a Fair Trial
One of the most relevant aspects of the HRA is that it makes it unlawful for a public authority to act in a way that contravenes Convention rights, unless that authority was acting strictly in accordance with the requirements of the relevant legislation, and in this context a public authority includes a court or tribunal.
Adjudicators must comply with the HRA if they are considered to be a tribunal or public body. In Bryan v. UK , the European Court of Human Rights held that a planning inspector was a tribunal. Furthermore, in Van De Hurk v. Netherlands , the Court held that any body that was able to provide a binding decision that could not be challenged by a non-judicial body was a tribunal. As Section 108(3) of the Construction Act makes adjudicators' decisions binding, except if they are challenged by a court or arbitrator, it follows that adjudicators must be considered tribunals and therefore subject to the HRA.
A schedule to the HRA sets out a list of the rights and freedoms in the legislation. The principal rights are as follows:
Fair hearing: there must be a fair balance between the parties with each side having a reasonable opportunity to present their case;
Independent and impartial tribunal; and
Public pronouncement of the judgment.
If a party to an adjudication believes that one or more of these rights has been infringed, the following options may be available:
It may be used as a defence against the claim in any enforcement proceedings;
Separate proceedings, in the form of an injunction restraining the adjudicator from continuing with the adjudication or a judicial review of the decision, may be issued within one year of the alleged infringement; or
Damages may be claimed against the adjudicator: the adjudicator currently enjoys contractual immunity under the provisions of the Construction Act, however such immunity could be regarded as being incompatible with the provisions of the HRA.
Practical Effect on Adjudications
With regard to the provision of a fair hearing, each party must have a reasonable opportunity of presenting his or her case. It is arguable that the...