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Forum shopping in adjudication

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??

5 thoughts on “Forum shopping in adjudication

  1. I do not think that there will be a problem if both Parties are not happy with the Adjudicator. Surely they can just agree not to use them and ask for a renomination. I would hope, given that both Parties are in agreement, the ANB would nominate somebody else.

    I am not happy in principle with “forum shopping” because it is not really the forum that is being shopped for – after all the forum is always adjudication. Instead one Party wants to influence, without the other Party’s agreement, who decides the dispute, based not upon qualifications and experience, but upon how “sympathetic” they subjectively think the individual concerned may or may not be to them. That appears to me to be a thin edge of a very dangerous wedge. What next I wonder? The Claimant being able to choose their judge?

    I suspect the way to deal with forum shopping is twofold. Firstly write the contract to prevent it. NEC contracts, for example, require the Adjudicator to be named in the contract, which I think is a good idea. And, if they have not been named (or cannot act), the person appointed by the ANB becomes the Adjudicator, i.e. as if they were named in the contract in the first place. And the obligation then is to refer all disputes to that person in the future.

    And secondly ANBs, when asked to renominate, should renominate the same person, unless both Parties (or the nominee) make the request.

  2. Some good points Peter. Re: your final point, if you are talking about subsequent dipsutes, there could also be good reason for going to an alternative, but where familiarity can save cost/time and consistency then the same adjudicator makes sense. However, if you are talking about a matter that has not been referred, then I would expect a valid reason to be proferred for not referring and seeking a re-nomination – that would perhaps help in addressing any perceived foul play.

  3. Matt – my final point concerned renomination because the dispute had not been referred. And in reality I am not sure that the ANBs are equipped (or even willing) to decide what is a good reason for not going to the same person. My view is that only the Adjudicator first nominated can decide if there is a good reason for him not to act. For example if there was a genuine conflict of interest I would expect the Adjudicator to refuse when asked by the ANB – the ICE send the nomination request showing parties and representatives just so that we can check conflict before we agree to act. And I have refused for that reason before.

  4. I can certainly see a situation where an ANB will just go with an alternative when re-nominating in order to get the processing done.

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