REUTERS | Fabrizio Bensch

Who do you want as your adjudicator?

I have noticed an increase in the number of adjudications that are referred to me where I have not been nominated via an adjudicator nominating body (ANB) like the RICS, but rather, at the outset I was named in the parties’ contract as the adjudicator or agreed by the parties following a dispute arising.

I wonder whether, if the adjudicator had been named in the parties’ contract or the parties had agreed an adjudicator in Lanes Group v Galliford Try, things may have turned out differently for them.

Lanes Group v Galliford Try

The parties’ sub-contract said any dispute would be carried out on the ICE‘s adjudication procedure and the ICE would act as the ANB. When Galliford Try referred a dispute to adjudication and applied to the ICE for an adjudicator, it suggested Mr Dixon should be appointed. The responding party (Lanes) didn’t want Mr Dixon (it alleged bias), and so the ICE appointed Mr Klein. The referring party then objected to Mr Klein, also alleging bias or apparent bias. Mr Klein denied these allegations.

Instead of pursuing the first adjudication, the referring party said it would not serve a referral (which would put it in breach of the adjudication agreement, or so said the responding party). Instead, it said it was going to start a new adjudication and ask the ICE for a new adjudicator. It duly did this, and the ICE appointed Mr Atkinson. At this point, the responding party said the referring party was acting in an “unfair, unreasonable and oppressive” way. That was an abuse of process which ought to be restrained by the court through an injunction.

Before Akenhead J in the TCC

Apart from considering whether the referring party had breached the adjudication agreement (it had), Akenhead J also considered whether Mr Klein was biased or there was apparent bias (he wasn’t) and the fundamental issue of whether he should he grant an injunction (he didn’t).

It may be that this case was decided on its facts. After all, there was an honest but mistaken belief that Mr Klein may be biased. However, I think Akenhead J has left the door open for future injunction applications by responding parties to restrain a referring party from starting an adjudication and then stopping if it doesn’t like the ANB’s choice of adjudicator, and then starting and stopping again (and again…).

In my experience, parties will often agree on the identity of an alternative adjudicator if they don’t like the ANB’s choice and then advise the ANB accordingly. Applying for injunctive relief seems a big step to take. The judgment does not explain why the responding party didn’t agree with the referring party to let the first adjudication lapse and proceed with the adjudication before Mr Atkinson. It just says there was “much repetitive correspondence” about the issue.

One presumes that the second adjudication is still continuing, since Akenhead J held that the referral in that adjudication had been served in time. Since it started on 21 March, Mr Atkinson’s decision should be due shortly.

This must have been an expensive exercise for the parties. How much simpler if they had just agreed at the outset.

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