Paice v Harding (TCC - 10.3.2015)

There was a real possibility that the adjudicator was apparently biased due to not disclosing the telephone conversations between one partys representatives and his office manager and his misleading accounts of those conversations

Technology and Construction Court
Coulson J


10th March 2015

There were four adjudications between the contractor and the developer with the same adjudicator. The first two adjudications resulted in sums being awarded to the contractor. The contractor then sent his final account to the developer. The following week there two telephone conversations between representatives of the developer and the adjudicator’s wife and office manager, one of which lasted for over an hour. The contractor in the third adjudication was awarded a specified sum in respect of its final account. The developer began the fourth adjudication in which it sought a decision as to the true value of the contract works. The contractor’s consultant asked detailed questions of the adjudicator in relation to the telephone conversations. He (i) stated that he had had no contact with any representative save in relation to the previous adjudications for the purposes of those adjudications and (ii) awarded the developer a specified sum.
Coulson J held that a fair-minded observer would conclude that the adjudicator’s following actions gave rise to the real possibility that he was apparently biased (i) His deliberate decision not to disclose the unilateral conversations between the developer’s representatives and his office manager (ii) His misleading answer to the request for him to disclose the nature of the telephone conversations with the developer’s representatives; and (iii) The tone and content of his explanations and witness statements.
The adjudicator knew about the nature of the developer’s complaints and concerns, both past and future, because his office manager stated in evidence that she briefly outlined the developer’s problems to him. Even if the developer was correct in submitting that the conversations did not need to be disclosed because they were with the adjudicator’s office manager and not him personally (i) He had actual knowledge of the conversations (ii) Whilst that might be regarded as the sort of artificial distinction beloved of lawyers, it was not a proper approach to the business of decision-making. The guidance issued by the adjudicator nominating body, the RICS, makes it clear that such an approach is unjustified because of its repeated references to the adjudicator and others associated with the adjudicator, including colleagues in his/her office.