R G Carter Ltd V Edmund Nuttall Ltd (Part II)
Technology and Construction Court
His Honour Judge Peter Bowsher QC
18 April 2002
There were four adjudications under the sub-contract. The adjudicator decided in the fourth adjudication that the sub-contractor should pay the contractor substantial sums of money. Court enforcement proceedings were brought by the contractor. The judge held that what the adjudicator had decided was not the dispute referred to him with the result that his decision was made without jurisdiction. The sub-contractor gave notice of adjudication to begin a fifth adjudication covering much of the same ground as the fourth adjudication. The sub-contractor unsuccessfully applied to the RICS not to appoint the same person as adjudicator in the fifth adjudication. The sub-contractor applied to the court for the removal of the adjudicator.
Judge Bowsher applied the test of judicial bias to the specific criticisms made of the adjudicator’s conduct of whether a fair-minded observer would consider that there was a real danger of apparent bias on his part and rejected the various criticisms of that conduct. The first criticism was in respect of the adjudicator’s letter that whilst he would probably have made the same decision on the same facts in the two adjudications, he had an open mind and would consider the parties’ submissions. The second was that the president of the RICS notified the sub-contractor that he had received assurances from the adjudicator that he would approach the fifth adjudication with an open mind but did not give details when asked. The third was that that the adjudicator had (wrongly) found in the fourth adjudication that a representative of the sub-contractor had knowingly and falsely maintained that costs had been incurred without giving that representative an opportunity to give oral evidence. The last was that the sub-contractor was invoiced for a substantial appointment fee by the adjudicator and that he subsequently said that it had been sent in error and should be destroyed.
Criticisms of the conduct of adjudicators will be judged by applying the test of of whether a fair-minded observer would consider that there was a real danger of apparent bias. However, Judge Bowsher also held that even if there were legitimate reasons giving rise to doubts as to the adjudicator’s impartiality, the court did not have the jurisdiction to order the revocation of the adjudicator’s appointment or the appointment of another person.