The Human Rights Act – One Year On – Judge Anthony Thornton Q.C.

16 October 2001 – Report by Charles Stimpson

Judge Anthony Thornton Q.C. honoured South-East Branch on the 16 October 2001 by giving a talk on ‘The Human Rights Act – One Year On’. Since 1999, Judge Thornton, a judge of the Technology and Construction Court, has been commenting & publishing articles on the subject of the Human Rights Act.

In Judge Thornton’s opinion, the Human Rights Act (HRA) could have an impact upon the work of arbitrators and the appointment of arbitrators. The concept of The Human Rights Convention was first set down after the Second World War, as it was felt necessary to establish democratic rules particularly in countries operating under the Civil Code System. Article Six of the Human Rights Convention established that every person has the right to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’; judgement is to be pronounced publicly, though in certain circumstances the press and public may be excluded from all or part of the trial.

Judge Thornton said that it was possible voluntarily to contract out of most of the HRA’?s provisions, including Article Six of the Convention. So where arbitration resulted from a genuinely free agreement between the parties, the HRA did not constrain arbitration. But there were now a growing number of commercial and consumer areas where arbitration is effectively mandatory. For instance, a party may find itself having to agree, rather than choosing to agree, simply by accepting a standard contractual relationship in order to perform a business matter. Judge Thornton gave the example of the NHBC Scheme where the householder is bound, without his specific consent, into an arbitration clause. Also, arbitration was sometimes imposed by statute.

Judge Thornton went on to explain that in general there was no conflict between the principles of fairness laid down in the Arbitration Act 1996 and the provisions of the HRA. But there were some difficulties associated with the HRA and arbitration. The Judge expressed a note of caution with regard to impartiality issues – for example in circumstances where an arbitrator happens to be a member of the same professional body as one of the parties in an arbitration.

He cited an example of restrictive practices and price fixing in the field of pharmaceutical products. A challenge had been brought regarding the “partiality” of one of the lay members of the Tribunal. In the example, the Court of Appeal had overruled the tribunal due to a lack of impartiality. This ruling arose out of an interpretation of the HRA, where any relationship of the tribunal, which might be regarded as giving rise to the possibility of partiality, would be sufficient for the hearing to fail the test of ensuring impartiality.

In some specialist fields there may be very few sufficiently knowledgeable experts. Further, these specialists may well have worked for one or other of the parties, and so the use of such experts as expert witnesses or tribunal members would be open to the challenge of not being impartial

The Judge said that the HRA posed a hard test on the issue of impartiality. It was important for the Arbitrator to be aware of the possibility of such a challenge. He cautioned that, where there was any risk of challenge, it would be wise for an arbitrator to get both parties to agree at the outset before proceeding, in order that both parties would confirm that they would not see his membership of a particular professional body as potentially giving rise to partiality. This procedure should avoid the possibility of one party later challenging his independence as an arbitrator.

Judge Thornton stressed that arbitrators must now take especial care and have an eye to the issues surrounding the HRA so that they are not in breach of it, in the execution of their duties. He suggested that arbitrators might follow closely the guidelines of the CIMAR Rules in order, to some extent, to reduce the prospect of their actions being challenged.

Further, the Judge felt there was some difficulty arising out of the wide powers given to arbitrators under the Arbitration Act, which might provide scope for a challenge under the HRA. That challenge might, for example, arise out of denying access to a fair and public hearing by a tribunal in a case where an arbitrator sets down that a hearing is to be documents only. In any arbitration each party must have the opportunity to present their evidence and properly consider that of their opponent. The test would be ‘is it appropriate to have documents only and thereby will each party be able to fairly put forward their case, possibly with the assistance of experts, in order to provide them as far as is possible with a full and fair presentation of the case?’ If either party feels that they have not had that opportunity, then there is always a potential for a challenge.

Again, an arbitrator must consider whether or not both parties have had a full opportunity to prepare their documents. This is relevant in cases where arbitrators are considering ‘time-tabling’? a hearing by issuing orders which set dates for the presentation of evidence.

The Human Rights Convention requires a party to have access to a tribunal. The Judge went on to discuss two issues which were difficult in respect of the HRA, being security for costs and sanctions if a party is in default. The difficulty is that a Security for Costs Order could in some circumstances be held to deny a party access to a tribunal. The Judge mentioned the example of Count Tolstoy, a bankrupt, who had been ordered to put up £100,000 as security for costs and who was therefore potentially denied access to a fair hearing. The Court of Appeal, however, held that he had not been denied access to a fair hearing because a pre mini-trial had taken place, with a view to assessing the Count’s case. The Judge explained that the Court needs to see that even if an Order for security of costs is made, then it can still be shown that access to a tribunal has not been denied.

With reference to the matter of default, a Default Order excluding evidence or pleadings or dismissing a case could be held to deny a party access to a tribunal, and so potentially breach the HRA. The Judge explained that he felt this can be resolved, provided there are safeguards. In order to avoid the possibility of such a challenge, it would be sensible for an arbitrator before issuing Notices of Default to allow a party in default one extra chance to comply – this in order to ensure that, as far as possible, a challenge is avoided.

The Judge said that in his view, after one year of the operation of the HRA, we have only experience of the partial effect of it. The Act had generated fewer cases, and had had less immediate effect, than had been expected. The courts and the House of Lords had nevertheless made it clear that the HRA, and Article Six of the Convention in particular, were not to be an easy base for challenges, but were in line with existing principles of English common law.

Judge Thornton expressed the view that if an arbitrator was careful and did the job properly, then he was probably no more likely to be challenged than before. Some things that might have been “?fair” before may, since the Act, be “no longer so readily characterisable as being fair”?.

As a final word of advice, the Judge said that Arbitrators should be sure to state what rules they have adopted, so that they can clearly illustrate the framework of the guidelines that were followed.A lively question session at the end of the lecture made this yet another enjoyable and informative meeting. Afterwards a buffet provided plenty of opportunity to network.

Charles Stimpson