Natural Justice

Natural Justice

A series of Articles on Adjudication-Part 2

The rules of natural justice are the minimum standards of fair decision-making principles.?It consists of the following elements: the right to a fair procedural hearing and a rule against bias (impartiality).

According to His Honor Judge Humphrey Lloyd Q.C in the case of Glencot Development and Design Co. Ltd. v. Ben Barrett & Son Limited, it is accepted that the adjudicator must conduct the proceedings following the rules of natural justice or as fairly as the limitations imposed by Parliament permit [1].

However, in the case of Austin Hall Building v. Buckland Securitie, Judge Bowsher considered that in practice, adjudications are governed by rules of natural justice that are not very far different from Article 6 of the Human Right Convention, except for the requirement of a public hearing and public pronouncement of the decision [2].

Similarly, in Elanay Contracts v.?The Vestry, Judge Havery concluded that Article 6 does not apply to an adjudicator's award or proceedings before an adjudicator because, although they involve the decision or determination of civil rights, they are not in any sense a final determination.?This conclusion is more consistent with case law from the European Court of Human Rights, particularly Bryan v. United Kingdom, where the European Court stated that even where an adjudicatory body determining disputes over civil rights and obligations does not comply with Article 6(1) in some respect, no violation of the Convention can be found in the proceedings before that body are "subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)" [3].

The Constituents of Natural Justice.

Fair Procedural Hearing: The right to a fair procedural hearing requires that an individual shall not be penalized by a decision affecting their rights or legitimate expectations unless they have been given prior notice of the case against them, a fair opportunity to answer it, and the opportunity to present their case.?The European Convention on Human Rights and the Human Rights Act 1988 provide the right to a fair public hearing to determine civil rights and obligations.?This determination is applicable in the process of adjudication, although the decision is temporary [4].

The Right To Legal Representation And Presentation Of Facts: An adjudicator has the absolute discretion to allow a person charged to be represented by a legally qualified person at the hearing.?However, the adjudicator can refuse to allow the person charged to be legally represented if there is an alleged breach of the Rules of Conduct [5].?Furthermore, even if a dispute has been decided in a previous adjudication, a second adjudicator can still review and consider previous facts if they do not change the previous decision.?In the case of Emcor Drake and Skull v. Costain, it was concluded that this is not fatal if the adjudicator did not trespass upon the previous decision.?This gives the right to introduce and present new legal arguments [6].

The Rule Against Bias: The rule against bias has two main aspects.?First, a person adjudicating a dispute must have no pecuniary or proprietary interest in the outcome of the proceedings.?Second, they must not reasonably be suspected or show a real likelihood of bias.?The adjudicator must conduct a full inquiry into the circumstances involved before deciding whether a breach of the Rules of Conduct has occurred and, if so, what sanction should be imposed.?This rule is based on the notion that courts, tribunals, and other decision-makers must be, and appear to be, impartial.

Appearance of Bias: A decision-maker must not only avoid actual bias in the decision-making process but also not appear to be biased.?This requires that evidence should not be ignored or dismissed without sufficient reason, even if actual bias did not arise.

References:

[1] Glencot Development and Design Co. Ltd. v. Ben Barrett & Son Limited

[2] Austin Hall Building v. Buckland Securitie

[3] Elanay Contracts v.?The Vestry; Bryan v. United Kingdom

[4] European Convention on Human Rights; Human Rights Act 1988

[5] Rules of Conduct

[6] Emcor Drake and Skull v. Costain

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