Lanes Group Plc V Galliford Try Infrastructure Ltd (No 3)
Technology and Construction Court
His Honour Judge David Waksman QC
6 July 2011
The contractor referred a dispute between it and the sub-contractor to adjudication. The adjudicator decided that the sub-contractor should pay the contractor a specified sum. The sub-contractor’s ground for its contention that the adjudicator was apparently biased was that the "preliminary views and findings of fact" document issued by the adjudicator during the adjudication about a month before he published his decision looked and read like a decision, reproduced much of the language and content of the decision itself and suggested that the adjudicator had already made up his mind.
Judge Waksman held that the sub-contractor’s contention was correct. The adjudicator was apparently biased by producing his "preliminary views and findings of fact" document. The document on its face looked like a draft judgment, contained what appeared to be findings as to liability and appeared to be one in which the adjudicator had made up his mind before receiving the sub-contractor’s response to the claims. The words of qualification in the introduction of the document that it was a step in making his decision and that he was not bound by the views expressed in it did not remove the overriding impression of a decision already made. The document consisted of 35 pages in all, read like a judgment on the face of it albeit subject to the opening words of qualification in its introduction and was obviously intended to be a judgment at some point because of the preamble, background facts, recital of adjudication and the list of issues which as a list was complete. More generally, as to documents expressing provisional views on which parties were then invited to comment (i) Such documents were not likely to be helpful or appropriate in the normal run of an adjudication (ii) Whilst such documents might be helpful where the parties expressly asked the adjudicator to do just that, it was not clear that this would always assist in a process which was meant to be concluded in a narrow time frame and confined in scope and (iii) Where the adjudicator considered that there might be another basis for one or other party's claim which had not been addressed by either, it was obviously incumbent upon him to put this to the parties for their comment.