Botes subbies invoke Human Rights Act

Three principal subcontractors owed a total of £725,000 by Botes Construction, which went into administration last month, are to make a claim for compensation under the Human Rights Act in legal action that could fundamentally change the face of English insolvency law.

The three firms, WS Britland, Acheson & Glover and Amery, will argue that under the Act they are entitled to full compensation for their work on Botes Construction's £10m Howe Dell School contract from client Hertfordshire County Council.

The Act states that a subcontractor has the right to make a claim against a public employer for damages for the loss he has suffered when a law applied by that employer breaches the Human Rights Act.

Stephen Roberts, WS Britland’s financial director, told CJ: "We are taking legal advice. We are told there is a good argument that the current law as it stands is contrary to Article One of Protocol One of the European Human Rights Convention which now applies in this country under the Human Rights Act."

Article One reads: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’

Roberts said: "There is a general principle in interpreting the Convention that where there is no right to compensation, the deprivation will normally not be treated as being in the public interest."

He added that the subbies’ case was strengthened by the fact that other countries use liens or pay subcontractors directly. "So it can't be said the English law is the only way to meet the public interest."

A Hertfordshire County Council spokesman declined to discuss the legal case. "We have appointed Mace to act as construction managers and they will re-employ those contractors and subcontractors needed to finish the job," he said.

Specialist Engineering Contractors' Group chief executive Rudi Klein said: "This is an injustice the construction industry has suffered for far too long. We have been lobbying long and hard for a change in the law and we welcome this argument put before the courts under the Human Rights Act."