Elanay Contracts Ltd v The Vestry
Summary judgement should be ordered to enforce the adjudicator's decision despite the contractor's contention that it did not have the benefit of a fair hearing on the basis that article 6 of the European Convention on Human Rights did not apply to adjudications
30 August, 2000
The claimant started court proceedings and applied in those proceedings to enforce the adjudicator's decision in its favour. The defendant challenged the application. It argued that summary judgement should not be ordered on the ground that the defendant did not have the benefit of a fair hearing during the adjudication proceedings due to its principal representative having had to spend much time visiting his dying mother and to the late delivery of documents by the claimant. In particular the defendant contended that article 6 of the European Convention on Human Rights applied to adjudications. Judge Havery rejected this challenge. The procedure under article 6 had to be in public whereas proceedings before the adjudicator would not in public. If article 6 did apply to adjudication proceedings, it was manifest that "a coach and horses" would be driven through the whole of the Construction Act 1996. Whilst adjudication proceedings were the decision or determination of a question of civil rights, as they were not in any sense the final determination insofar as that the determination was provisional in the sense that the matter could be reopened. Although the procedure before an adjudicator was very rough and ready, that could not of itself be regarded as a reason for not ordering summary judgment. Finally the special circumstances relied on by the defendant did not alter the position as set out above. Advice Note This case was the first where a ?head on? challenge was made against the procedure for resolving disputes by adjudication under the Construction Act. The provisions of the Act clearly envisage ?rough and ready? justice by laying down a procedure which should be concluded within a 28 days period. No one can expect that an adjudicator working under such time constraints will be able to produce a decision with the same level of refinement as a court judgment dealing with the same issues. However, this case makes it clear that a challenge based on violation of human rights because of such a ?breakneck? timetable will not succeed when the courts come to enforce adjudication decisions.