European Convention on Human Rights – Right to fair hearing under Article 6 – Dispute over final amount payable under JCT contract – Whether Article 6 applicable to decision made by adjudicator under Housing Grants, Construction and Regeneration Act 1996 – Adjudicator imposing time limits in accordance with Act – Whether adjudicator acting in manner incompatible with Article 6 – Whether defendant deprived of right to public hearing
By a contract that included the terms of the JCT agreement for minor building works, the defendant engaged the claimant to carry out work in Chance Street, London E1. The JCT terms provided for the adjudication of disputes under the system established and required by the Housing Grants, Construction and Regeneration Act 1996 (the statutory system). In compliance with section 108(2) of the Act, the contract required the adjudicator to reach a decision within 28 days of referral, while allowing the adjudicator to extend that period by up to 14 days with the consent of the referring party.
In March 2000 the claimant submitted a draft final account. Having received no decision from the defendant’s contract administrator, the claimant nominated an adjudicator and formally referred the dispute on 10 November 2000. On the same day, the adjudicator sent a fax requiring the defendant to serve its response on or before 17 November 2000. Having received a response from the defendant on 16 November, the adjudicator wrote on 21 November giving the defendant three days in which to serve a detailed breakdown of its assessment of the account. The defendant protested that this was insufficient time, and requested an extension until 1 December 2000. With no consent forthcoming from the claimant, the adjudicator sent a written refusal on 23 November and thereafter proceeded to deal with the matter in dispute. On 8 December 2000 the adjudicator decided that the claimant should be paid £81,928, plus interest from 17 March 2000 at 5% above the Bank of England base rate.
The defendant submitted that its right to a fair and public hearing, as provided by Article 6 of the European Convention on Human Rights, had been denied because: (i) the statutory system itself was inherently unfair; (ii) there had been no public hearing; and (iii) the defendant had not been given reasonable time in which to respond to the claimant’s final account.
Held: The defendant failed on all the issues raised.
1. Regarding the first submission, the court was powerless to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 (HRA), as the required notice to the Crown had not been given. Such a declaration would not, in any event, affect the rights of the parties to the case: see section 4(6) of the HRA.
2. Assuming that Article 6 did apply to the statutory system, and that the adjudicator had acted in a way that was incompatible with the Convention, the answer to almost the whole of the defendant’s case lay in section 6(2) of the HRA. This stated that it was not “unlawful” for a public authority so to act if, as a result of primary legislation, it could not have acted differently. That provision clearly applied to the imposition of the time limits in the instant case.
3. The defendant’s complaint that there was no public hearing fell outside section 6(2), but was to be rejected for one or more of the following reasons:
(i) Although the matter was finely balanced, an adjudicator acting under the 1996 Act could not be seen as a “public authority” for the purpose of Article 6. The proceedings before the adjudicator were not legal proceedings, but rather a process designed to avoid the need for legal proceedings. Unlike an arbitrator (who could be seen as such an authority in certain kinds of proceeding: Bramelid and Malstrom v Sweden (1983) 5 EHRR 249 an adjudicator made a decision that amounted to neither a judgment nor an award. Like the decisions of a certifier, the decisions of an adjudicator could be relied upon for a court application, but they were not, in themselves, enforceable: see section 108(3) of the 1996 Act and Benthem v Netherlands (1986) 8 EHRR 1.
(ii) The right to a public hearing could be waived by the complaining party, and was so waived (by implication) by a failure, as in the present case, to ask for a public hearing: see Schuler-Zgraggen v SwitzerlandA/263 (1993) 16 EHHR 405.
(iii) Applying Bryan v United Kingdom [1996] 2 EGLR 123, one had to consider not just the adjudicator’s decision but the whole process (including court proceedings) necessary to enforce it. Such a process necessarily involved a public hearing if the need arose to enforce the decision.
(iv) The present adjudicator did not act in a manner incompatible with Article 6 or with the principles of natural justice. The short time limit for providing a fuller response was justified having regard to the time that had passed since the submission of the draft final account and the fact that copies of all relevant documents had long been in possession of the defendant, which, accordingly, could not complain that it had been “ambushed” by the allegedly late production of the two files.
Robert Clay (instructed by Prince Evans) appeared for the claimant; Paul Letman (instructed by Amery-Parkes) appeared for the defendant.
Alan Cooklin, barrister
