Are they right? I won't attempt an answer; I will merely suggest how the question should be approached if the enquirer follows the path of the the European Convention on Human Rights and the act.
Public authority
Many enquiries forget that the starting point is section 6 (1) of the act, which makes it unlawful for a public authority to act in a way that is incompatible with a convention right.
There are two potential public authorities in question: the adjudicator and the judge who has been asked to enforce a decision. Even if the adjudicator is not bound to comply with the convention, a judge has to when dealing with enforcement proceedings, since every court or tribunal is defined by the act as being a public authority.
As for adjudicators, they are bound to apply the convention if they are either a tribunal or, even if not a tribunal, a public body. A tribunal is a body that can examine all questions of fact or law arising in a dispute that it has the jurisdiction to decide on and then make a legally binding decision. This is in contrast to a panel or administrator, which makes an advisory or non-binding ruling. So, in Bryan vs UK (1995) the European Court of Human Rights in Strasbourg held that a planning inspector was a tribunal and, in Van De Hurk vs Netherlands (1994), it held that any body given the power to give a binding decision that may not be altered by a non-judicial body was also a tribunal. Section 108 (3) of the Construction Act states that the adjudicator's decision is binding until the dispute is finally determined by a court or an arbitrator. Doesn't that make an adjudicator a tribunal? Furthermore, the potentially provisional nature of an adjudication would not appear to take it outside the ambit of the act.
In any case, adjudication is not a consensual process. Section 108 (1) of the Construction Act gives a party to a construction contract the right to refer a dispute to adjudication whatever the opposing party may think. Unlike arbitration, an opposing party cannot refuse adjudication, so the process is not voluntary. There is no statutory definition of "public authority", but surely someone who decides the compulsory reference of a dispute would count as one? Guidance is to be found in Bramelid vs Sweden (1986), where it was held that article 6 did not apply if arbitration was entered into voluntarily; but: "If the parties have no option but to refer their dispute to an arbitration board, it must offer the guarantees set forth in article 6 (1)."
Independence and impartiality
Article 6 requires a tribunal to be independent and impartial. In connection with independence, the nominating body should have had no connection with one of the parties, as in Campbell and Fell vs United Kingdom (1985). Can a nominating body that is a trade association or a professional body make an appointment if one of the parties is a member of the same trade or profession? As for impartiality, the Strasbourg test is whether, objectively, there is a legitimate fear that the tribunal might not have been impartial. This test was laid down in Piersack vs Belgium (1983) and recently applied by the Court of Appeal in DGFT vs Proprietary Association of Great Britain (21 December 2000). An adjudicator's decision was not enforced in Woods Hardwick vs Chiltern (2 October 2000) because the adjudicator did not refer one party's views to the other for comment, and subsequently provided a detailed affidavit that was used in enforcement proceedings by the successful party to explain why the adjudicator considered the losing party had not been unfairly treated. The conduct would now be a strong candidate for being considered as lacking impartiality.
A fair hearing
Article 6 guarantees a fair hearing, with each party given equality of arms. Thus, each party must have a reasonable opportunity of presenting its case to the tribunal under conditions that do not place it at a substantial disadvantage with respect to its opponent.
Each party must have an fair chance of presenting its case to the tribunal … The speed of adjudication will sometimes flout this requirement
The speed required of adjudication will, on occasion, flout this requirement. But, it will be said, the Construction Act requires a decision within 28 days. Maybe, but if in a particular case that would preclude the provision of article 6 guarantees, the adjudicator can and should decline to decide the dispute, since it is unlawful for a public authority to act in a way that is incompatible with a convention right. An entitlement to adjudication is valid only if it provides a fair hearing.
Proportionality
There is no need to despair or to think that adjudication will not survive the Human Rights Act. This is because the convention requires a balance to be struck when a potential breach of article 6 has occurred. The principle was explained in Soering vs United Kingdom (1989) as follows: "Inherent in the whole of the convention is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's human rights." So, the Latham principles of immediate payment and speedy, if temporary, resolution of disputes will justify much of the adjudication machinery currently operated. This justification would include the ability of the adjudicator to take the initiative in ascertaining the facts and the law, an approach often wrongly called inquisitorial. However, any inability to present a case fairly because of the strict imposition of very short time limits would not usually be proportionate.
Public hearing
Article 6 guarantees the right to a public hearing and the public pronouncement of a reasoned decision. Since many adjudications are conducted on paper, the first right would arise only when meetings are held with the parties. If neither party asks for a public hearing, this right is waived, but if one party seeks a public hearing, the adjudicator (subject to proportionality considerations) cannot refuse the request. This was made clear in Pauger vs Austria (1997).
The act requires reasons to be given if sought, and these become a public document. Nominating bodies should consider whether to place all decisions of adjudicators nominated by them in a publicly accessible register.
Costs
It is thought by many that costs cannot be awarded by an adjudicator. That argument could be said to overlook paragraph 20 of the Scheme for Construction Contracts, which allows an adjudicator to decide any matter under the contract that is necessarily connected with the dispute. One should have thought that a dispute as to who should pay costs incurred in resolving a dispute by a process required by the contract was necessarily connected with that dispute.
However, if costs are not awardable, there will sometimes be occasions when a party's inability to fund its case in the adjudication will constitute an inequality of arms. This is certainly so in cases where the assistance of a lawyer is indispensable if a party is to have effective access to the tribunal, as in Airey vs Ireland (1979).
Postscript
His Honour Judge Anthony Thornton QC is a judge of the Technology and Construction Court.
