It is commonplace for a potential adjudicator to get asked questions about previous involvement with the parties before he is appointed. All the nominating bodies do it. Solicitors often get involved in the process too. Sometimes the questions go further than just the parties, sometimes you get asked about firms of solicitors or specific individuals, such as the experts involved.
The practice is understandable. The questions go to the heart of the issue of bias, and whether it can be said that prior involvement with one of the parties will taint the adjudicator’s mind in such a way that he will breach the rules of natural justice and his decision will be unenforceable because of that.
In Fileturn v Royal Garden Hotel, the adjudicator was asked by the RICS to:
“disclose any involvement however remote… you or your firm has (or has had in the last five years) with either party in this dispute…
…having made enquiries within your organisation [to confirm] no involvement exists (or has done so in the last five years)… with any party to this dispute…”
This is quite an onerous task, especially for those adjudicators who are part of large practices. Even in small practices, adjudicators need to keep good records. Deciding what records to keep of your “involvement” with others is subjective. I can see the logic of keeping records of the parties, their advisors and experts in any adjudication, mediation/ADR process or litigation you are involved in, but how far should you go beyond that?
In Fileturn, the Hotel argued that that there was a pre-existing relationship between the adjudicator, and Fileturn’s representative in the adjudication, Mr Silver, of Always Associates. The adjudicator had been a director of Always Associates a few years earlier, although he was based in a different office to Mr Silver. The Hotel supported its argument of apparent bias with evidence that the adjudicator had been involved in 10 adjudications where Always Associates represented one of the parties and that Mr Silver had requested the adjudicator’s appointment 12 times, even though he had been appointed only once. These numbers seem small when compared to the 250 adjudications that the adjudicator had conducted, or the 150 applications for an appointment that Mr Silver had made.
Everyone involved in adjudication in the construction industry knows it is a small world. Everyone knows each other and everyone knows that the same adjudicators’ names crop up time and time again. You only have to attend a few “construction” functions to realise the same people attend these things.
I was therefore rather pleased that the judge dismissed the Hotel’s claims of bias. I took note that the next time I’m asked these questions, I need to ensure that my answers are clear and cannot be misinterpreted. I also suggest (as the judge does), that those asking the questions also make sure their questions are drafted clearly too, so that we adjudicators know exactly what we are being asked.