The question screams bias to me. Certainly, if the question was the other way around (can a party’s expert subsequently act as an adjudicator on the same dispute), I doubt anyone would think anything other than apparent bias.
But is the answer so black and white?
In Fileturn v Royal Garden Hotel, the TCC was asked to consider the relationship between an adjudicator and a party representative. They had been partners in the same claims consultants’ practice some years before. I wrote about it at the time.
Edwards-Stuart J said it was a question of whether there was apparent bias and whether:
“…the informed and fair-minded observer, having considered the relevant facts, would conclude that there was a real possibility of bias”.
I think the fair-minded observer used to be known as the chap on the Clapham omnibus. The new phrase comes from Re Medicaments. Either way, it’s really about what other people think, but only those who are informed and fair-minded.
Edwards-Stuart J went on to draw an analogy with what happens at the bar (with barristers, not those getting a drink), and concluded that informed observers (like solicitors) know that the specialist construction bar is small, both in terms of the number of chambers and barristers who practise at it, and where members of the judiciary come from (especially in the TCC). Members of the same chambers frequently appear on both sides of a dispute, particularly large disputes. There is never an allegation of apparent bias there. Although adjudicators are not judges, they are professional men with codes of conduct to adhere to. To suggest there was apparent bias on the part of the adjudicator in Fileturn was “fanciful speculation”.
Edwards-Stuart J didn’t mention experts in his judgment, but it is arguable that, by analogy, the same rules would apply, as they too are professional men subject to codes of conduct.
Shades of grey
Let’s suppose the referring party is the contractor involved in the development of large office block, and there have been a number of adjudications arising out of the development to date. Some adjudications relate to issues with the employer, others with sub-contractors. A number of individuals have acted as the adjudicator, picked due to the issues in dispute. Would it be wrong for the contractor to look to one of those adjudicators to help it as an expert going forward?
From the contractor’s perspective, there may be a costs saving involved. After all the adjudicator-expert would have a working knowledge of the development and would get up to speed pretty quickly. That must be beneficial.
But how would the employer and the sub-contractors view this new arrangement? I suspect they would assume that the adjudicator-expert was biased, as he would have a vested interest in providing an expert opinion that was consistent with his earlier decision. If not, he would open himself up to criticism.
Would the adjudicator be interested in the appointment as an expert?
Lastly, what would the adjudicator think if he was approached to act as an expert? I suspect he would not be interested, but as with all these things, it would depend on the facts.
I think the adjudicator would need to think carefully before accepting an appointment to act as an expert. He should also consider his obligations as an expert, as set out in the protocol that covers the appointment of experts in litigation.
Having acted as adjudicator, I was invited to accept appointment as solicitor for one of the parties in a subsequent arbitration involving the same matter. My immediate reaction was to decline, but having thought about it at length I agreed. I had not received any material from the other party that had not already been seen by my potential client, so there was no issue of confidentiality. My role as adjudicator was concluded and I therefore had no continuing duty of impartiality. My new role as solicitor for the party could not be seen as evidence of bias during the adjudication because I had decided against that party!
I understand and respect John’s argument but when this happened to me a few years ago I declined immediately. It simply seemed to me to be wrong that I should switch roles and I would have felt uncomfortable, although I had also decided largely against the party who wished to appoint me.
In the event a year or so later there was a second adjudication on the same project and I was again appointed as adjudicator, so did not lose out entirely!