I saw an interesting point tucked away in the middle of paragraph 10 of Akenhead J’s judgment in Arcadis v May and Baker. I will leave others to focus on the alleged breaches of the rules of natural justice (including that the adjudicator took a restrictive view of his own jurisdiction, went off on a frolic of his own, failed to consider a defence and exhibited apparent bias). I’m more interested in the parties’ choice of adjudicator the second time around.
Who will be the adjudicator?
When it comes to referring a dispute to adjudication, one of the first considerations for the referring party must be who the dispute is going to be referred to. Generally, the main factor determining this choice is the parties’ contract. If an adjudicator has been named in the contract, unless he is unable or unwilling to act, then any dispute arising under the contract has to be referred to him.
It is quite common for parties’ contracts to name an individual (or several individuals, depending on the type of disputes that may arise) and most standard form contracts have a default position of an adjudicator-nominating body (ANB). If an adjudication is proceeding under Part I of the Scheme for Construction Contracts 1998, there are even more detailed provisions regarding the adjudicator’s appointment, including the involvement of ANBs.
Difficulties may arise when the referring party involves an ANB. For example, see my blog posts on
Nomination of the adjudicator by an ANB and Who do you want as your adjudicator?.
None of this is surprising. In fact, its fairly basic stuff.
What happens when one party doesn’t want a particular individual?
We saw what happened in Lanes Group plc v Galliford Try Infrastructure Ltd, when the referring party objected to the ANB’s choice of adjudicator, alleging that he was biased. Instead of proceeding with that particular adjudication, it started a new one, applying to the same ANB and proceeding with a different adjudicator. This was “unfair, unreasonable and oppressive” according to the responding party. While Akenhead J may have agreed with the responding party that it was behaviour that shouldn’t be encouraged, he refused to grant the injunction it sought.
At the time, I wondered how much easier (and cheaper) it would have been for the parties to have agreed to the alternative adjudicator. It is my experience that parties often agree on the identity of an alternative adjudicator if they don’t like the ANB’s choice and then advise the ANB accordingly.
Which brings me back to paragraph 10 of Akenhead J’s judgment in Arcadis v May and Baker.
Arcadis v May and Baker
Here, the first dispute was decided by Dr Ross, the second by Mr Rogers. This was because the employer/responding party had objected to Dr Ross’ re-appointment, which the contractor/referring party had requested when it applied to the ANB for an appointment (the ICE on this occasion).
I can understand why the ANB did this, but it is arguable (as the referring party argued) that Dr Ross’ re-appointment would have saved the parties both time and money as he was already familiar with the contract, the parties and so on.
The judgment raises the question of whether it is appropriate for an ANB to re-appoint in the face of one party wanting X and the another not. In practice, I suspect it is always easy to persuade an ANB not to re-appoint. Perhaps ANBs think about the judgment in Lanes Group v Galliford Try and the possible consequences of not listening to one party.
It may also be easier for the referring party to make its views known, since it is in control when it applies for an appointment. The responding party is often on the back-foot at this stage and has to react very quickly if it is to get its views across to the ANB before the ANB selects an appropriate individual to act.
A further complication in an ANB’s appointment may be its own rules of appointment. As I understand it, the ICE uses a cab-rank system, which may explain why there was no re-appointment here. I think that type of system is too prescriptive and doesn’t appear to take into account the benefits of using the same adjudicator again, but at least it is arguable that the system is transparent. I guess that if the parties want the same adjudicator again, they must make representations to that effect at the time of the application. Alternatively, they could agree to bypass the contract’s adjudication provisions (if that requires an ANB appointment) and go directly to the adjudicator.
Dear Matt, interesting blog as ever. It seems that the converse of the ICE approach is that taken by the RICS where the normal position is that the same adjudicator will be re-appointed. In my experience the RICS is reluctant to exercise its discretion to change adjudicator without substantive grounds.
So on occasion there will be parties who feel encumbered with the same adjudicator whilst on other occasions parties will be fighting off attempts from the other side to get a different adjudicator nominated.
Even worse is where, on a contract that is silent on both the adjudicator and ANB to be used, each party decides to refer using a different ANB so as to avoid the other party’s ‘preferred’ adjudicator – thus leading to increased costs and a number of other potential issues. As such it is important to be aware the respective approaches to serial nominations by the available ANBs.