Last summer people were talking about HHJ Waksman QC’s judgment in Lanes v Galliford Try, not least because it looked to mark the end of adjudicators giving the parties their provisional view of the case they were being asked to decide. However, it seems that we don’t need to be so worried after all, as Jackson LJ in the Court of Appeal has reversed that decision.
At the time of HHJ Waksman QC’s judgment, I noted that he said that such provisional view documents were not “helpful or appropriate”, except in rare cases. I disagreed with this view. 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 light of this, I was pleased that Jackson LJ reversed the earlier judgment. Helpfully, Jackson LJ drew parallels with judges setting out their provisional views at an early stage of the proceedings. It seems that if judges are doing it, it is OK for adjudicators to do it too. Just as we can try to gain clarity of the issues between the parties, judges try to focus the parties’ minds on those matters “which appear to be influencing the judge”. Obviously, we (just like judges) shouldn’t reach a final decision prematurely, but that is different to trying to assist the parties, especially in the timescales of adjudication.
That said, I still think adjudicators need to take care when preparing a provisional views document. They should not give a party an opportunity to challenge their decision or the judge an opportunity not to enforce the decision. In Lanes, if the adjudicator had written or presented his views differently, the opportunity to take the point may not have arisen in the first place. It is arguable that HHJ Waksman QC’s judgment was merits based (taking into account the fact that the provisional views document was produced before the responding party had served its response), and such circumstances may be rare.
Finally, I hope Jackson LJ has addressed any reservations that adjudicators may have had about being pro-active in the aftermath of HHJ Waksman’s judgment. I don’t think we need an increase in po-faced adjudicators!
In the weeks since this judgment was handed down, one aspect of the judgment not mentioned by Matt – so called forum shopping – has attracted considerable attention from construction commentators. Although Jackson LJ noted such a practice is “never attractive”, he refused to rule it out (he found it was permissible under the parties’ contract).
In light of the Court of Appeal’s decision on this point, it has been reported (by Construction News) that Lanes will apply to the Supreme Court for permission to appeal Jackson LJ’s judgment.
Having failed to persuade Jackson LJ (and LJs Stanley Burnton and Richards) of the merits of its arguments, only time will tell whether Lanes will have more success in the Supreme Court. In the meantime, parties should remain alert to the possibility that a referring party may reject an adjudicator nominated by an adjudicator nominating body (ANB). They should also remember that Galliford Try did not serve its referral because it alleged the first adjudicator was biased. Although the court at first instance (Akenhead J) did not address the bias issue, it held, obiter, that:
– There was no apparent bias at the time of the adjudicator’s appointment.
– On the evidence, it was clear that Galliford Try’s solicitor genuinely believed there might be apparent bias by the first adjudicator.
That should provide some food for thought in the coming months.