Civil Engineering Reference
In-Depth Information
adjudicator had been a director of the firm of claim consultants who represented
Fileturn in the adjudication. he court held, however, that the number of occasions on
which the adjudicator had acted when his previous irm was involved was only a small
proportion of his practice. He therefore did not depend on that business. he adjudi-
cator had had no interest in his previous firm since 2004. The court saw no difficulty
with representatives of parties being well known to the decision-maker, whether that
beajudgeoranadjudicator.Inspecialistcourts,liketheTechnologyandConstruction
Court in England and Wales, this is a frequent occurrence. Adjudicators are profes-
sional people with their own codes of conduct and that should not present a problem.
Taking this into account, it was considered 'inherently unlikely' that a fair-minded
and informed observer would conclude that the adjudicator's involvement with the
firm six years previously would give rise to bias in this instance. In fact, the court
considered any assertion to the contrary to be 'fanciful speculation'.
In
Makers UK Limited
v
. he Mayor and Burgesses of the London Borough of Camden
(2008), the allegation was of apparent bias, due to a telephone call having taken place
with the adjudicator to check his availability to act. An application was then made
to the RIBA, suggesting the adjudicator be appointed if available. The court found
no apparent bias in this case, but did suggest that, as practical guidance, parties and
adjudicators should limit unilateral contact before, during and after an adjudication,
due to the potential of any such contact being misconstrued. If there is to be any such
contact, it is better to be in writing rather than verbal.
In
AMECCapitalProjects
v
. Whitefriars City Estates
(2004),theallegationwasagain
one of apparent bias, this time based on the adjudicator having previously made a
decisiononthesameissue.hisargumentwasnotupheldanditwassaidthatthere
needed to be something of substance to lead to the conclusion that there is bias. To
succeedinrelationtobiaswillrequireclearfactualevidencesupportingtheallegation,
as well as a clear apprehension, on reasonable grounds, of potential bias.
An adjudicator having been appointed in an adjudication some three years previ-
ouslyinvolvingthereferringpartyandthefactthatheconductedamediationwith
thereferringpartydaysbeforehisappointmentinanadjudicationwasalsoheldnot
to be sufficient evidence of bias where he had no personal knowledge of either party,
was not selected by either party and had no connection to the subject matter of the
dispute, see
Andrew Wallace Ltd
v.
Jeff Noon
(2009).
16.10.5 Severability of adjudicators' awards
Partial enforcement of an adjudicator's decision has been held to be competent; see
Homer Burgess Limited
v.
Chirex Limited
(2000) where Lord MacFadyen stated that:
healternativetomygrantingreductionwasformetohearsubmissionsidentifying
that part of the adjudicator's decision that was within his jurisdiction, and enforce it
to that extent only,by granting decreefor payment in thepursuers' favour restricted
to the sum reflecting the
intra vires
part of the decision. In my view either of the
two suggested courses would be competent.
