Lanes Group Plc (“Lanes”) and Galliford Try Infrastructure Ltd (“GTI”) will each have managed to spend a small fortune adjudicating, arbitrating and litigating over a dispute which has dominated the construction legal press for over a year.Perhaps Lanes and GTI would have been better advised to mediate their dispute at an early stage, agreed to make a sizeable donation to charity in respect of the joint saving in legal fees they would have enjoyed and, in doing so, perhaps even have kept their relationship alive. Hindsight is such a wonderful thing!
This article deals with one important issue which has recently been decided by the Court of Appeal in relation to the adjudication aspect of Lane and GTI’s dispute. That issue is whether or not a party who issues a Notice of Adjudication and application to an Adjudicator Nominating Body (“ANB”) can elect not to refer the dispute to the nominated Adjudicator and at a later date refer the same dispute under a separate notice and application to the same ANB with the intention of securing the appointment of a more “desirable” Adjudicator.
Although the Court made clear that it did not like the idea of such a practice and said
“The proposition that a claimant can allow an adjudication to lapse because it disapproves of the appointed adjudicator and then start a fresh adjudication before a different adjudicator is not an appealing one”,
the same court went on to recognise that there could be no term implied in a relevant construction contract which would compel a Referring Party to proceed with the first appointed Adjudicator and that a failure so to proceed would deprive the Referring Party of the right to commence the same adjudication at a later date.
This part of the judgment is perhaps not too surprising in some respects. After all, it readily accepted that a Referring Party who fails to issue a Referral Notice within 7 days after its Notice of Adjudication is not prevented from issuing a new Notice of Adjudication, re-applying to the same ANB for the nomination of the same Adjudicator before issuing its Referral Notice on time. I suspect I am not the only Adjudicator who feels uncomfortable about the prospect of a Referring Party continuing to issue serial applications to an ANB until it feels that the “right man for the job” is finally appointed.
However, for the time being at least, forum shopping in adjudication is here to stay. It remains to be seen whether this decision will lead to an abuse of the process and if the Courts decide that intervention is warranted after all.
Peter Vinden is a practising adjudicator, arbitrator, mediator, expert and conciliator. He is Managing Director of Vinden and can be contacted by email at firstname.lastname@example.org