After a brief discussion of article 6 – the right to a fair trial – Judge Thornton adds: "The obvious area where the act will bite is dispute resolution, particularly adjudication … Since adjudication is a statutory process that is compulsory for the responding party, adjudicators and adjudicator-nomination organisations are public bodies" (my italics).
By the time Judge Thornton put pen to paper for his second column (9 February, pages 58-59), reticence creeps in. In reference to commentators who say the human rights legislation does not apply to adjudication, the learned judge's response is: "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 European Convention on Human Rights and the act." The earlier confidence has gone. But let's consider one of the most important issues raised by the judge in his latest column.
He suggests that adjudicators constitute a public authority or a tribunal and, therefore, are subject to article 6: "In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." But let's get back to basics. The fundamental aim of the Human Rights Act is to make it unlawful for public authorities to act in a way that is incompatible with convention rights. The act is not intended to regulate everyday commercial relationships.
Section 6 of the Human Rights Act envisages three types of public authority:
- Public bodies exercising statutory powers
- Bodies carrying out a public function
- Courts or tribunals.
A UK court is not bound to apply the decisions reached in the European Court on Human Rights – it is only obliged to take them into account in reaching its own decision.
English courts are more likely to attach the label "public authority" to a body that has been amenable to judicial review – the remedy for dealing with the misdeeds of public bodies. The critical question, therefore, is whether adjudication can be made subject to judicial review. This was considered in an excellent paper delivered by Anthony Speaight QC at last year's King's College conference on the Construction Act. Speaight's conclusion is that one "might as well have a go at judicial review" where an adjudicator has been appointed under the Scheme for Construction Contracts without the consent of the aggrieved party. But I would be reluctant to endorse Speaight's conclusion unless I had money to throw away.
In his paper, Speaight made reference to the Datafin case in 1987 in which the Court of Appeal accepted that self-regulatory bodies in the City were amenable to judicial review. But self-regulatory bodies in the financial services industry are still a world apart from adjudication. The former perform a quasi-public function in protecting the consumer. Speaight also considers that the lack of an appeal against an adjudicator's decision is another factor that could invite a judicial review claim.
But an aggrieved party can refer the dispute to arbitration or litigation once the adjudicator has given his decision. Furthermore, it is now clear that the courts are reluctant to enforce an adjudicator's decision where "there is credible evidence … that the claimant in the action is insolvent" [Rainford House (in administrative receivership) vs Cadogan].
Judge Thornton suggests that a structured approach is required when dealing with the question of whether the Human Rights Act applies to adjudication. The first question he poses is: "Is the convention applicable by virtue of the act?" I believe that the answer is no, which, conveniently, means that I do not need to address his other questions.
Rudi Klein is a barrister and chief executive of the Specialist Engineering Contractors Group.