Lanes Group Plc v Galliford Try Infrastructure Plc: Bias and Repeat Adjudication
There are not many reasons for which the court will decline to enforce the decision of an adjudicator. Bias, or the appearance of bias, is one of them – if this is serious enough. A serious occurrence of apparent bias came before the Technology and Construction Court London in June 2011.
The contractor abandoned two previous referrals to adjudication. On its third referral, the pre-imminent Mr Daniel Atkinson was selected as adjudicator. He gave his decision on 17 May 20111. He decided that the Sub-Contractor, (represented by Bunton Consulting Partnership, claims consultants) should pay the Contractor (represented by McGrigors, solicitors). In the course of the adjudication, Mr Atkinson issued the Preliminary Views and Findings in Fact. His final decision was broadly similar to this interim document.
The Sub-Contractor went to the TCC claiming that:
- Mr Atkinson’s decision should be ignored, because the Contractor had lost the right to insist on it by abandoning the previous adjudications; and separately
- the interim document suggested that Mr Atkinson had been bias towards the Contractor.
The court decided that there was nothing to prevent the Contractor from abandoning one adjudication and starting another.
However, it also found that Mr Atkinson was at least apparently bias:
a. The language used by the interim document suggested bias;
b. The interim document was issued with no advanced warning. The issue of such a document was not normal practice.
Mr Atkinson may well have been impartial. However, that was not the impression given by his words and conduct. Adjudicators must not forget that even rough justice must be seen to be done.
Suspicion of forum shopping has often been rumoured in adjudication circles. However, more often than not, there is good reason for abandoning and starting again. So the court took the view that to outlaw this may cause more harm than good to the process. The ability to abandon an adjudication remains.