My last post looked at Jackson LJ’s Court of Appeal judgment on adjudicator bias in Lanes v Galliford Try. I had been wondering whether to address the “forum shopping” point when I saw PLC’s comment appear on my post. That, coupled with the fact that I’ve recently been approached to act in a matter where the ANB appointed an adjudicator that neither party wanted, was all the impetus I needed.
I agree with PLC’s comment that the forum shopping point has dominated the legal columns of the trade press, but wonder whether those commenting realise how common the practice really is?
I may have been approached recently, but it is hardly the first time (or the last?) that one or both parties have come to me when they have been unhappy with the ANB’s choice. Until Akenhead J was asked to look at this point last spring, I’m not sure how much thought parties gave to the potential implications of rejecting an ANB chosen adjudicator.
Also, how much harm is there if a party who believes the ANB’s choice is inappropriate in asking for another, or agreeing with the responding party to approach a specific individual? We have all got used to the practice of parties requesting specific experience in an adjudicator, or giving reasons why one person would (or would not) be a suitable adjudicator for the dispute. Surely this is just an extension of that practice.
It is also worth bearing in mind that the responding party does not suffer quite as much as some commentators would have you believe. Let’s not forget that the referring party will have played its hand, it will have served the notice and given the responding party an additional few days to get itself ready to respond. While Akenhead J said that it may be appropriate to injunct a party, surely he was thinking about serial rejectors, not a situation where (as in the one he was considering), one party had genuine reasons why it did not want adjudicator A.
In my view, one simple way to avoid all of this is to include a named adjudicator (or adjudicators) in the construction contract. Failing that, seek to agree with your opponent who to approach. As with all these things, that may save both parties considerable time and money. It is hard to know whether Lanes’ application to the Supreme Court will be successful but one wonders how much all of this litigation will have cost them. Wouldn’t it have been so much simpler just to agree to let Mr Klein’s appointment lapse??