Adjudication Article Series: A Nation Of Talkers? Fair Procedure Under The Constitution And Its Impact On Adjudication

In this series we've touched on some key points relating to the scope of adjudication under the Construction Contracts Act 2013 (the "Act"). We now turn to the broader legal picture and look at how statutory adjudication may work alongside constitutional rights in Ireland.

Bunreacht na hÉireann and fair procedure

The Irish Constitution is the fundamental law of Ireland and provides for rights of all Irish citizens. Flowing mainly from Article 40.3 are principles of natural justice relating to fair procedure. Key to fair procedure is firstly, that citizens have an entitlement to be heard and, secondly, that no one can judge his own case (this is the rule against bias).

The presumption of constitutionality means that Irish statute law must be interpreted in a way that is consistent with the Constitution so that, for example, it must be presumed that the legislator intended principles of fair procedure to apply to adjudication under the Act. The other point to bear in mind is that fair procedure is flexible - it should be proportionate to the circumstances of the case including the type of decision-making body. If a decision maker exercises statutory power in breach of constitutional justice, then the courts can quash that decision.

The focus of this article is on the right to be heard. What does the concept of a fair hearing involve? Typically the following:

parties must be properly informed of the matter to be decided on; parties must have adequate opportunity to present their materials and arguments. This includes adequate time to prepare; parties must be properly informed of the materials and arguments on which the other side intends to rely and given adequate opportunity to comment on them; and oral hearings, with evidence being adduced through examination and cross-examination, have tended to be a fundamental aspect of fair procedure. However oral hearings may not always be required so long as parties have a chance to make their own case such that it can be fully and fairly considered by the decision maker. Bodies exercising functions of a quasi-judicial nature that determine legal rights and obligations of citizens are generally required to give reasons for their decisions. I'm happy to get paid, thanks!

Statutory adjudication was designed to be a quick way of dealing with payment disputes within the construction sector to allow cash flow ("as the life blood of the building industry") to be preserved. One of the key features of...