John Mowlem & Co plc V Hydra-Tight Ltd

The contractor was not obliged under paragraph 8.1(e) of the ICE Adjudication Procedure to keep a current list of all the individual members of the set of barristers' chambers on the basis that this set constituted its "approved list" of adjudicators

Technology and Construction Court
His Honour Judge Toulmin CMG QC
6 June 2000
The 1997 version of the ICE Adjudication Procedure governed any adjudication between the contractor and the sub-contractor. Disputes arose and the sub-contractor applied to the nominating body specified in the sub-contract to appoint an adjudicator. A further dispute arose as to whether the purported appointment had been properly carried out in accordance with the Procedure.
Paragraph 3.2 A. of the Procedure as amended provided that where an adjudicator had not been named or agreed, the contractor was to nominate an adjudicator from the list of approved adjudicators. One aspect of this dispute was whether the contractor had to maintain a current "approved list" of adjudicators in order to comply with the definitions in paragraph 8.1(e) of the Procedure. Paragraph 8.1(e) as amended provided that approved adjudicators were the list of adjudicators compiled by the contractor which it considered suitable to determine disputes under the main contract. The contractor had specified that the members of a particular set of barrister's chambers constituted its "approved list". Judge Toulmin held that there was no obligation on the contractor to maintain a current "approved list" of adjudicators by physically updating the list from time to time to reflect arrivals and departures from the set of barristers chambers in question. This was because although it was clear that the "approved list" should exist by identification and be communicated on request, there was no difficulty in construing that list to be the members of the specified set of barristers chambers for the time being. Also this method of identification gave a range of possible adjudicators, enabled an adjudicator to be appointed who was free from any actual or perceived conflict of interest and gave the sub-contractor the opportunity to object to a proposed adjudicator on the ground of actual or perceived conflict of interest.
Advice Note
It is often desirable to identify in advance the adjudicator to be appointed to resolve any disputes in the contract. One way to do so is not to name an individual but instead to name a "class" of adjudicators. Judge Toulmin's decision shows that such a way of identifying the adjudicator is acceptable to the courts even though a specific individual is not specified.