Cases - Austin Hall Building Ltd v Buckland Securities Ltd
Record details
- Name
- Austin Hall Building Ltd v Buckland Securities Ltd
- Date
- [2001]
- Citation
- (TCC) BLR272
- Legislation
- Keywords
- Construction contracts - adjudication - human rights - right to a fair trial - enforcement - summary judgment - whether the adjudication process was unfair and in breach of the Human Rights Act 1996 - whether the adjudication process was a breach of the right to a public hearing - Human Rights Act 1998
- Summary
-
This was the first case before the court in which it was said that the system of adjudication itself is unfair and offends against the European Convention on Human Rights - made legally effective in the UK by way of the Human Rights Act 1998. No allegation of unfairness was made against the adjudicator, nor was it alleged that the adjudicator did or omitted anything that reflected on his personal conduct.
The adjudicator had decided that Austin Hall should be paid £81,928.14 with interest and that Buckland should pay his fees.
This action was brought by way of an application for summary judgment to enforce the adjudicator's decision. The defendant alleged that it was denied its right to a fair trial guaranteed under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and therefore the adjudicator's decision was a nullity and should be set aside.
Further, the defendant complained that it was not given a public hearing and that the decision was not pronounced publicly.
The court, however, concluded that adjudicators make decisions, not judgments. The decision of an adjudicator is not enforceable of itself. Those decisions can be relied on as the basis for an application to the court for judgment, but they are not in themselves enforceable.
The court conceded that the arguments were finely balanced, but concluded that an adjudicator is not a public authority and is not bound by the Human Rights Act 1998. Nevertheless, the judge observed that the rules of natural justice achieved much the same results as Article 6.
In view of the fact that the arguments were finely balanced, the judge went on to consider the consequences of his decision being incorrect. He found that, in any event, the claimant's application should fail for the following reasons:
- If one considers the whole process necessary to enforce the adjudicators decision, then there is necessarily a public hearing before the decision is enforced (court proceedings), and therefore all the other requirements of article 6 of the Convention are satisfied.
- If there is a breach with regard to publicity, the Human Rights Act 1998 provides that the defendant can only rely on the Convention rights in legal proceedings if he is (or would be) a victim of the unlawful act. So far as lack of publicity goes, the court concluded that the defendant was not a 'victim'.
- The claimant had in any event waived his entitlement, if any, to a public or private hearing by failing to ask for a hearing.