Amec Capital Projects Ltd v Whitefriars City Estates Ltd (Part II)

There was a real possibility that the adjudicator was apparently biased and in breach of the rules of natural justice in respect of certain aspects of his conduct of the second adjudication
 
AMEC CAPITAL PROJECTS LTD v WHITEFRIARS CITY ESTATES LTD (Part II)
Technology and Construction Court
His Honour Judge John Toulmin CMG QC
27 February 2004
 
 
The court refused to enforce the decision in the contractor's favour on the basis that the adjudicator had been wrongly appointed. The adjudicator named in the contract died shortly after the court hearing. The contractor secured the appointment of the same adjudicator for the second adjudication. The adjudicator made another decision in the contractor's favour. In the court enforcement proceedings brought by the contractor, the employer contended that the adjudicator's conduct was in breach of the rules of the natural justice and was apparently biased.
 
Judge Toulmin held that there was no real possibility of bias simply by reason of the adjudicator having been re-appointed for the second adjudication. The re-appointment of an adjudicator who had already reached a decision on the same or similar facts would not inevitably lead the fair-minded and informed observer to conclude that there was a real possibility that the decision would be biased.
 
However, the adjudicator was in breach of the rules of natural justice by not having disclosed to the parties the outside legal advice he had obtained. This advice was in relation to his jurisdiction to act as adjudicator and to the issue in the first adjudication of the validity of notices given by the employer. The adjudicator should have disclosed this advice in its entirety. In relation to the advice on jurisdiction, the judge held that there was no valid distinction between jurisdictional advice and advice on the merits of the claim. In relation to the advice on the merits, there was a real risk that the adjudicator had relied on this advice in the second adjudication. Finally the judge held that the adjudicator's telephone conversation with the contractor's solicitor might have led the fair-minded and informed observer to conclude that there was a risk that he might have been led to the biased conclusion that he could simply reach the same conclusion as he had reached in the first adjudication. The solicitor stated in the conversation that the second adjudication raised the same facts and issues as in the first adjudication and that his familiarity with those facts and issues would mean a significant saving of time and cost.
 
Advice Note
The courts continue to impose stringent requirements on adjudicators in terms of the "transparency" with which they conduct proceedings.