Whether the adjudicator should resign when invited by one party to do so is very much dependent on the facts of the particular situation. I read with considerable interest the judgment in Bovis Lend Lease Ltd v Cofely Engineering Services [2009] EWHC 1120 (TCC) and wondered what I would do if I found myself in the same situation as Mr Smith’s colleague found himself.
For those of you not familiar with the case, this was a situation where the sub-contractor (Cofely) had referred four disputes to adjudication under the sub-contract, asking the RICS to nominate an adjudicator on each occasion. Tony Bingham was appointed in all four adjudications. When the sub-contractor referred a fifth dispute to adjudication, the contractor (Bovis) raised a jurisdictional challenge, even though the sub-contractor used the same procedure as before, with Tony Bingham again nominated as the adjudicator. Not only did the contractor object to the fifth adjudication, it started its own, sixth adjudication, with a partner at Davis Langdon as adjudicator. (Mr Smith of Davis Langdon was named in the main contract and also in parts of the sub-contract as the adjudicator, but was unable or unwilling to act, and nominated a colleague.)
As the parties could not agree on which adjudicator had jurisdiction to hear the dispute, both adjudications were stayed while the parties had their day in court before Mr Justice Coulson. They used the CPR Part 8 procedure, seeking a declaration on, amongst other things, what was the correct procedure for nominating an adjudicator (in other words, was the procedure the sub-contractor followed five times the correct procedure, or had the parties acted in error on each previous occasion, when Mr Smith (or a colleague) should have been the adjudicator?).
It is difficult to second guess the actions of the parties and the sixth adjudicator. The judgment reveals very little about the sixth adjudication. However, it is certainly arguable that the sixth adjudicator should have resigned when the sub-contractor invited him to do so. By not resigning, the parties were exposed to additional costs and time. The court may have appluaded the parties for bringing the matter before it so promptly, but was it really necessary?
In my view, it was clear which approach the parties should take to appointing an adjudicator. It was clearer still what the sixth adjudicator should do. The sub-contractor’s challenge was made early. As I have written in this column before, if the challenge to the adjudicator is made early in the proceedings, before the responding party has incurred substantial costs, then I am more likely to resign. I don’t see why the sixth adjudicator didn’t act in a similar fashion.
