Ellis Building Contractors Ltd V Goldstein
Technology and Construction Court
18 February 2011
Akenhead J made comments as to the improper submission of "without prejudice" material before an adjudicator. He stated that whilst the improper deployment of "without prejudice" material in adjudication was something which happened in adjudication as in court, the TCC had at least anecdotally seen an increase in this behaviour in adjudication. This often arose because parties represented themselves or were represented by consultants who were not legally qualified and perhaps did not fully understand that truly "without prejudice" communications were privileged and should not be referred to in any legal or quasi-legal proceedings, including adjudication. Whilst if "without prejudice" communications surfaced in a court, the judge (being legally qualified and experienced) could usually put it out of his mind, it was a more pernicious practice in adjudication because most adjudicators were not legally qualified and there would often be a greater feeling of unease that the "without prejudice" material might have really influenced the adjudicator. The TCC could only strongly discourage parties from deploying "without prejudice" communications in adjudication.
Akenhead J went on to derive various conclusions derived by from caselaw as to the consequences and ramifications of the improper submission of "without prejudice" material. Such material should not be put before an adjudicator (and lawyers who did so might face professional disciplinary action). Where an adjudicator decided a case primarily on the basis of wrongly received "without prejudice" material, his decision might well not be enforced. The test as to whether there was apparent bias present was whether on an objective appraisal the material facts gave rise to a legitimate fear that the adjudicator might not have been impartial. The court in any enforcement proceedings should look at all the facts which might support or undermine a charge of bias regardless of whether such facts were known to the adjudicator.
In the instant case the reference to the employer’s solicitor’s "without prejudice" letter to the contractor’s solicitors by the contractor in its reply in the adjudication did not give rise to apparent bias. This was because no objection was made by the employer or his solicitors in the five days between the service of the contractor’s reply and the issue of the decision (three of which were working days). It was also clear that the adjudicator did not base his decision at least openly on the contents of, the fact of or inferences drawn from what was or was not in the "without prejudice" letter.