Volker Stevin Ltd V Holystone Contracts Ltd

The fact that the adjudicator knew that an offer had been made by the sub-contractor would not have led a fair-minded and informed observer to conclude that the adjudicator was or even might have been biased


Technology and Construction Court
Coulson J
9 September 2010

A fair-minded and informed observer would not concluded that there was real possibility or a real danger that the adjudicator was biased in the circumstances of the instant case. Any suggestion to the contrary was entirely unrealistic. The relevant test set out by Lord Phillips in the Court of Appeal case of In Re Medicaments and Related Classes of Goods (No 2) (2001) was that the court first had to ascertain all the circumstances with a bearing on the suggestion that the judge was biased and then had to ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the tribunal was biased. The adjudicator's letter in which he stated that his task had not been informed in any way by the disclosure of the offer and his written decision made clear that he was wholly unconcerned with the fact that an offer had been made. On the face of both documents the adjudicator treated his knowledge of the fact of the offer as irrelevant. There was other evidence that supported that conclusion, namely the note made by the adjudicator before he was made aware of the offer that many elements of his decision had already been decided, which suggested that the bulk of the decision had already been produced and the fact that in his decision the adjudicator went through each item of claim and each defence to that item of claim in painstaking detail, explaining how and why he had reached the view he had done. Looking at the position rather more widely the adjudicator would have been unsurprised by the fact that an offer had been made by the responding party because in any construction dispute the adjudicator, just like a TCC judge, would tend to expect that negotiations had taken place between the parties and that offers had been made and it was a very rare case in which negotiations or offers did not occur.