Andrew Wallace Ltd V Noon

The fact that the adjudicator had acted as an adjudicator and a mediator in relation to other disputes to which the referring party had been a party did not mean that the adjudicator was apparently biased in relation to the adjudication which formed the subject matter of the instant case
 
ANDREW WALLACE LTD V NOON
 
Technology and Construction Court
His Honour Judge David Grant
19 November 2008
 
Disputes arose in relation to the construction contract which were referred to adjudication. The adjudicator was nominated by the RIBA. When asked by the RIBA whether the adjudicator had any current relationship with either party to the proposed adjudication, he answered that he did not. It transpired during the course of the adjudication that the adjudicator had acted as an adjudicator and a mediator in two disputes to which the referring party was a party. The adjudication continued and the adjudicator made a decision in the referring party's favour. The referring party commenced court proceedings and sought to enforce the decision by summary judgment. The responding party contended that there was apparent bias on the adjudicator's part because of (i) the pre-existing dispute resolution relationship between the adjudicator and the referring party (ii) the proximity in time between the mediation and the adjudication which formed the subject matter of the instant case (iii) the absence of initial disclosure to the RIBA or to the responding party by the adjudicator of his having conducted the previous adjudication and mediation and/or (iv) the piecemeal nature of the disclosure which the adjudicator eventually gave to the responding party during the course of the adjudication. The referring party submitted that (i) the court should examine critically the allegations of breach of natural justice and (ii) an affirmative answer to the question of whether there was a breach of natural justice should only be given where that answer was "obvious" or it was "the plainest of cases".
 
Judge Grant rejected the responding party's contention and accepted the referring party's submissions. The fact that the adjudicator had acted as mediator in an entirely separate dispute involving one of the parties to this adjudication, but otherwise entirely unconnected with the subject matter of this adjudication, albeit conducted only two days before he was appointed adjudicator in this adjudication, did not mean that the "fair-minded and impartial observer, having considered all the circumstances which have a bearing on the suggestion that the decision maker was biased, would conclude that there was a real possibility that he was biased.
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