A & S Enterprises Ltd v Kema Holdings Ltd

The conduct of the adjudicator was such that there was a real possibility of bias on his part and that he was in breach of the requirements of natural justice on the basis of the comments he made in his decision about a representative of the employer not being available for a meeting
 
A & S ENTERPRISES LTD v KEMA HOLDINGS LTD

Technology and Construction Court
His Honour Judge Richard Seymour QC
27 July 2004
 
The adjudicator convened a meeting at which various of the parties' representatives were to be present. A representative of the employer was not available to make a contribution to the meeting by means of a telephone conference call. The adjudicator made a decision in the contractor's favour and in his decision commented unfavourably upon the representative not being available and upon the effect that his unavailability had on the way he viewed the contractor's claim. The contractor brought court enforcement proceedings. The employer opposed enforcement on the grounds that the adjudicator's conduct with regard to the employer's representative's unavailability constituted apparent bias on the adjudicator's part and a breach by him of the rules of natural justice.
 
Judge Seymour agreed that the conduct of the adjudicator was such that there was a real possibility of bias on his part and that he was in breach of the requirements of natural justice. If the adjudicator had confined his attention to the facts he had to find to reach a decision, it would have been possible for him simply to record that he had not heard any oral evidence from the employer's representative. By stating in his decision that the employer's representative "chose" not to make himself available by telephone for the meeting, the adjudicator indicated that his lack of availability was a matter for criticism on the basis that the representative had a free choice and that his decision was a deliberate one that was uninfluenced by any factor other than a desire not to be of assistance. If the adjudicator had confined his attention to the evidence and his ability to reach conclusions of fact, it would not have been necessary for him to have expressed any view as to whether the employer's representative had a good, bad or indifferent reason for not providing an oral contribution to the meeting but the adjudicator thought it right to say that no proper explanation had been offered as to why he had not heard from the representative. Advice Note Adjudicators must be very careful in how they treat witnesses if they are not to be found to be in breach of the rules of natural justice.