Makers UK Ltd v London Borough Of Camden

There was no implied contractual term that neither party should seek to influence unilaterally the nominator's appointment of an adjudicator by making unilateral representations to the nominator concerning whom it should nominate
 
MAKERS UK LTD V LONDON BOROUGH OF CAMDEN

Technology and Construction Court
Akenhead J
25 July 2008
 
The contract between the local authority and the contractor incorporated JCT IFC 98. Clause 9A-2 of IFC 98 provided that the adjudicator was to be the individual agreed by the parties or nominated by the nominator (the RIBA). A dispute arose as to whether the local authority had validly terminated the contract. The contractor's solicitor took the view that the dispute should be decided by a legally qualified adjudicator, ascertained that there was a solicitor on the RIBA's panel of adjudicators, spoke to that solicitor over the telephone and found out from the solicitor that he would be available for any adjudication. The RIBA appointed the solicitor as adjudicator in the light of the contractor's solicitor's suggestion that he should be appointed. The adjudicator's decision was the local authority was guilty of a repudiatory breach of contract. The contractor brought the court proceedings in which it applied for a declaration that the adjudicator's decision was valid and enforceable. The local authority in opposing the contractor's application contended that there was an implied contractual term that neither party should seek to influence unilaterally the nominator's appointment of an adjudicator by making unilateral representations to the nominator concerning whom it should nominate. It further contended that the contractor was in breach of this implied term with the result that the adjudicator's appointment was null and void.
 
Akenhead J rejected the implied term proposed by the local authority. There was nothing in clause 9A-2 which expressly barred the party seeking the appointment from the RIBA making representations to the RIBA as to the attributes or even the name of the person to be appointed. There was no suggestion that the RIBA would be in breach of its own rules if it listened to and even acted upon representations as to the attributes or identity of the person to be nominated by it. It was not necessarily wrong or unhelpful for a party to make representations. If someone who was unwittingly put forward by a party to the nominating body was biased, whether actually or ostensibly, one or other party could resist enforcement of the subsequent decision on that ground. It was in any event unlikely that any breach of such a term would, in the absence of impropriety, undermine or invalidate the appointment of the adjudicator.
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