REUTERS | Ina Fassbender

Apparent bias. Is this the end of preliminary views documents?

HHJ Waksman QC’s judgment in Lanes v Galliford Try looks set to change adjudication practice. It isn’t often we get a TCC judgment that I can say, hand on heart, will potentially impact on some adjudicators’ approach to decision making as much as this one is likely to.

Serving a preliminary views document

For those not familiar with the judgment, the adjudicator issued a preliminary views document a few weeks before his final decision. That in itself doesn’t sound unusual, such documents are quite commonplace, especially in high value claims. However, he issued the document before he had seen Lanes’ response. Even then, that may have not raised any red flags, but it appears that Lanes was spoiling for a fight in this adjudication, having already been before Akenhead J twice, and being part way through an arbitration before Ramsey J, all arising out of the same train depot contract with Galliford Try.

Appearance of apparent bias

Lanes argued that there was apparent bias because the adjudicator had, in effect, already made up his mind before he had seen the response.

It probably didn’t help that the preliminary views document used language like “I find”, “I find and hold” and “Decision”. As the judge said, that wording did not look provisional. There was also a lot of similarities between the two documents, with findings that were the same and in the same language.

I suspect the adjudicator was hoping to use the document as the basis of his final decision and was trying to save himself some time. I suspect he may regret that now.

Guidance on bias

There isn’t much guidance out there to help adjudicators. I took a look at the Construction Umbrella Bodies Adjudication Task Group’s (CUBATG) guidance from 2002. It may be nearly 10 years old, but in the section on natural justice, it:

  • Suggests an adjudicator should avoid conducting the adjudication “in a manner which favours, or seems to favour, one party”. That would be bias.
  • Warns against “seeming to have made up your mind as to the merits of the case before having heard or seen all the evidence”. That too would be bias.

Case law may have developed the principles of natural justice far more over the last 10 years, but it is clear that the underlying principles remain the same. Based on this guidance, it is easy to see how the judge thought there may be apparent bias here.

What next?

I noted that near the end of his judgment, HHJ Waksman QC said that such provisional documents are not “helpful or appropriate”, except in rare cases like when the adjudicator considers there is another basis for one party’s claim, or the document has been expressly requested by the parties.

In my experience, they can be helpful to the parties, especially if it is not clear from the submissions what issues are to be decided. In that case, the preliminary views document can set out the adjudicator’s understanding of the issues. I also believe it can be helpful in saving costs, especially if the adjudicator indicates, in the preliminary views document, areas that he considers are irrelevant and/or do not require further comment.

However, following this judgment, my view is that in order to reduce the risk of being held to be biased, adjudicators are less likely to take a pro-active role in the adjudication process. I do wonder whether we will see an increase in po-faced adjudicators, which is somewhat ironic as this was an often criticised characteristic of old school arbitration and which, arguably, gave rise to the need for something different (adjudication), in the first place. Are we now at risk of going full circle?

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