The weakest link

A full frontal attack on adjudication claimed that the Construction Act went against the Human Rights Act, but there is in fact no connection between the two

"The adjudication itself is not the legal proceeding. It follows that no complaint can arise if the adjudication is not heard in public"

I was going to write this piece yesterday while in Borneo. It is about human rights. I was telling my local lawyer friend about the first real human rights attack on adjudication. Then he told me his little human rights story. There had been a dispute just up the road. Dispute? More than 500 local people had been found hacked to death. Today, I crossed the South China Sea to a place where seven opposition politicians were imprisoned because they said they would take part in a local demonstration. All that puts case number 56 in the series on adjudication decisions into perspective. The case is Austin Hall Building Ltd vs Buckland Securities Ltd.

Nothing about this ordinary building industry dispute is odd, just the opposite. The adjudicator's decision was that the builder was owed £81,928 by the employer. The decision was within his jurisdiction. He kept to the 28-day timetable. He answered all the issues put to him. So why not comply? Buckland said all this adjudication malarkey in the Construction Act 1996 runs smack into the Human Rights Act 1998. That act says everyone is guaranteed a fair trial, including a proper opportunity to put their case. Buckland said the 28-day timescale in the Construction Act was inherently unfair. On top of that, it complained that adjudication was not a public hearing nor pronounced publicly. So the adjudicator's decision and the whole system ought to be declared ineffective in law.

Judge Bowsher QC is the first judge to have heard a full argument on adjudication and human rights. True, it arose in Elenay vs Vestry, but not in any depth. This time, both barristers presented a huge range of international judgments that explored this issue. It is a significant examination running to 27 pages of thorough analysis. I will tell you the result now. Adjudication is innocent, acquitted of all charges. It has nothing to do with human rights.

The judge explained that article 6 of the convention only applies to legal proceedings in tribunals. He continued: "I do not regard an adjudicator under the 1996 act as a person before whom legal proceedings may be brought. Legal proceedings result in a judgment or order that in itself can be enforced. If the decision at the end of legal proceedings is that money should be paid, a judgment is drawn up that can be enforced. That is not the case with an adjudicator. The language of the 1996 act throughout is that the adjudicator makes a decision. He does not make a judgment. Nor does he make an "award" as an arbitrator does, although he can order that his decision be complied with. Proceedings before an arbitrator are closer to court proceedings because an award of an arbitrator can in some circumstances be registered and enforced without a judgment of the court. But the decision of an adjudicator, like the decision of a certifier, is not enforceable of itself. Those decisions, like the decisions of a certifier, can be relied on as the basis for an application to the court for judgment, but they are not themselves enforceable."

Indeed, the Construction Act plainly states that the decision of the adjudicator is binding until the dispute is determined by legal proceedings. The adjudication itself is not the legal proceeding. It follows that no complaint can arise if the adjudication is not heard in public then pronounced publicly. In any event, Buckland never asked for a public hearing, nor would it be so idiotic as to ask for a public pronouncement of its own breach of contract.

Instead of thinking of the adjudicator as a certifier, the judge might have done better to have thought of an "engineer's decision" under ICE contracts. The engineer not only issues certificates but pronounces on disputes between employer and contractor. The impartial adjudicator is there too – for everyone involved in the project.

Adjudication is merely one of the wide range of alternatives for coping with conflict stirred by disputes between people building buildings. Litigation, arbitration, mediation, adjudication and negotiation are just options on a spectrum ranging from avoidance to violence. The people up the road in Borneo got violence. I am humbled, and coming home.

Readers are invited to forward recent judgments for reporting in this column (with full acknowledgement) to: Tony Bingham, 3 Paper Buildings, Temple, London EC4Y 7EU. DX:007I LDE

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