When one of the parties to a construction contract wishes to refer a dispute to adjudication the next step is to appoint an adjudicator.

Some contracts name an adjudicator. Typically though, the standard forms of contract provide that in the absence of agreement either party may make application to a named adjudicator nominating body (ANB), which will then nominate an adjudicator from its panel.

Some ANB’s are better than others at providing within their application form for the nature of the dispute and the required experience of the adjudicator to be identified so that insofar as possible an appropriately qualified and experienced adjudicator can be selected. A lack of sufficient information about the dispute may result in the appointment of an adjudicator who may not be the most appropriate adjudicator for the matter in dispute.

In such circumstances it is not uncommon for one of the parties to seek to influence the ANB to appoint or not to appoint a particular adjudicator.

Such circumstances were considered in the recent case of Makers UK Limited v The Mayor and Burgesses of The London Borough of Camden. This case concerned an adjudication about the alleged wrongful determination by Camden of Makers’ employment under the contract. The contract was the JCT Intermediate Form (1998) in which clause 9A-2 provided that the adjudicator shall be an individual agreed by the parties or on application by either party an individual nominated by the RIBA.

The issue was largely a legal question of whether the determination was or was not wrongful and Makers took the view that it was preferable to have a legally qualified adjudicator. With this in mind Makers’ solicitor contacted a suitable legally qualified adjudicator on the RIBA panel to confirm that he was willing to act as adjudicator. In making their application to the RIBA, Makers then proposed to the RIBA the appointment of this particular adjudicator. The RIBA then duly obliged and he was appointed.

Evidently Camden was suspicious of Makers’ motives for proposing this particular adjudicator and immediately took issue with his appointment on the basis that Makers’ proposal to the RIBA was highly unconventional and insisted on an explanation.

The adjudicator wrote to the parties confirming that he had had a conversation with Makers’ solicitor before his appointment during which he merely confirmed his willingness to act; and that his only connection with Makers solicitors was as an opposing solicitor on a number of matters over the previous 15-20 years.

The adjudicator proceeded to reach his decision finding against Camden. Camden did not accept that the decision was valid and refused to pay the adjudicator’s fees as directed by the adjudicator. Having paid the adjudicator’s fees Makers then commenced proceedings against Camden for a declaration that the decision was enforceable and for recovery of the adjudicator’s fees.

Camden argued that there should be an implied term whereby “neither party may seek to influence unilaterally the nominator’s determination regarding the identity of an adjudicator, by making unilateral representations to the nominator concerning whom he should nominate or otherwise”. Camden also argued that there was apparent bias on the part of the adjudicator, relying on a number of arguments relating to the process leading to the adjudicator’s appointment.

The court said that there should be no such implied term for reasons that included the fact that there was nothing in clause 9A.2 that expressly bars the applicant from making representations as to the attributes or even the name of the person to be appointed; the RIBA is an independent and respected institute that could take or leave any such representations. The court found that it was not necessarily wrong or unhelpful for a party to make representations, since it would be sensible to inform the RIBA of a particular technical skill required and if particular individuals were conflicted out or the likelihood of bias might exist.

With regard to the argument of bias, the court found that in accordance with the standard of the “fair-minded and informed observer” referred to in Porter v Magill, there was no apparent bias and observed that parties to adjudications must avoid making mountains out of molehills even where something happens that is outside their immediate experience or knowledge.

In summary the court suggested that enquiries of potential adjudicators would be best made in writing and suggested that nominating bodies review their rules concerning whether or not they will accept representations and if so whether notice should be given to the other party.

- Rob Palles-Clark