Lanes Group Plc v Galliford Try Infrastructure Ltd:
update on decision of the Technology and Construction Court London, June 2011
Since our earlier article on the judgement of the Technology and Construction Court (TCC) in Lanes Group Plc v Galliford Try Infrastructure Ltd, the Court of Appeal has overruled the decision.
The Court of Appeal agreed that there may be nothing to prevent a party from abandoning one adjudication and starting another, if it did not like the adjudicator selected.
However, the Court of Appeal disagreed with the TCC on the issue of whether the adjudicator had been biased. The adjudicator had issued a “Preliminary View” during the adjudication, stating that this was provisional. It was claimed that this amounted to bias, because the adjudicator had pre-determined the dispute, before hearing all of the arguments.
The court considered the allegation from the view of the “fair-minded and informed observer”.
The Court of Appeal upheld the adjudicator’s decision. It was not “tainted by apparent bias or apparent pre-determination.” The court held that there is a distinction between “(a) reaching a final decision prematurely and (b) reaching a provisional view which is disclosed for the assistance of the parties”.
It once again repeated that adjudication is a “rough and ready process carried out at great speed”, and “an adjudication decision is not final”.
The court reasoned that by allowing Preliminary Views the dispute may be narrowed. This may in turn enable parties to focus their attention and resources on the issues which the adjudicator, provisionally, considers are important. Such direction may also enable a party to decide whether a further adjudication is competent, prior to raising it.
The danger of giving a Preliminary View is that it may allow one party to rectify the inadequacies of its position, by advancing new arguments in an attempt to change the adjudicator’s mind. These arguments may never have been advanced, had the adjudicator not outlined his Preliminary View to the parties. The result may be a shortening of an already tight timescale, for the opposing party to respond.
It will be interesting to see whether adjudicators decide to issue a Preliminary View, given the protection which may be afforded to them by the Court of Appeal’s decision in this action. Our experience is that they will, if invited to do so. That may be a useful tool to a Referring Party, unsure of the strength of its claim. The Responding Party may see this as more ambush.