Adjudicator's Bias - Makers UK Ltd v London Borough of Camden

July 2008

The recent judgement of Makers UK Ltd v London Borough of Camden (LBC) considers the issue of adjudicator's bias when one party checked on the availability of an adjudicator prior to making its application for appointment to the RIBA.

Makers contracted with LBC to provide various repair and renewal works.  The contract was the JCT IFC 1998 with amendments.  The dispute clause provided that the adjudicator would either be agreed by the party or nominated by the body agreed in the contract, in this case the RIBA.

Following the service a notice for failure to proceed regularly and diligently with the works LBC purported to determine Makers employment under the contract.  Makers however considered that LBC had repudiated the contract and this was the dispute Makers referred to adjudication.  Makers had engaged Fenwick Elliott to represent them in the adjudication and the solicitor responsible for the daily conduct of the matter decided that it would be desirable to have a member of the RIBA panel who had a legal qualification.  A search was made and a suitably qualified adjudicator was found.  The solicitor made contact with adjudicator who confirmed he was available to act in the matter if requested. 

Makers duly served their Notice of Adjudication and made an application to the RIBA for the appointment of an adjudicator.  In the covering letter to this application, which unlike the application would be seen only by the RIBS, it stated:

"Makers claim that Camden repudiated their Contract.  This is a legal issue and it is suggested that Mr Philip Harris of Wright Hassell be appointed if available."

Mr Harris was duly appointed and LBC were notified of his appointment.  LBC subsequently wrote to the solicitor questioning the manner in which the adjudicator had been appointed.  LBC later noted that its participation in the adjudication was without prejudice to their contention that the adjudicator had been invalidly appointed and therefore had no jurisdiction.

The adjudicator subsequently issued his decision which Camden refused to comply with on the grounds of an invalid appointment and apparent bias.

LBC argued that there was an implied term that neither party may seek to unilaterally influence the nominator in the appointment of an adjudicator.  Rejecting this argument Mr Justice Akenhead found that there was no need to imply such a term as the provisions worked satisfactorily as they were.  Furthermore, it is not uncommon for parties to make suggestions regarding the attributes required of an adjudicator.

On the matter of bias, which needs to be judged by the standards of the "fair-minded and informed observer" Mr Justice Akenhead found there was no apparent bias on the part of the adjudicator.

Mr Akenhead laid down the following guidance for those participating in adjudications:

"This case has thrown up a number of points upon which it may be helpful if some guidance is given which might be of practical help to people and parties involved in the adjudication process under the HGCRA:

(1) It is better for all concerned if parties limit their unilateral contacts with adjudicators both before, during and after an adjudication; the same goes for adjudicators having unilateral contact with individual parties. It can be misconstrued by the losing party, even if entirely innocent.

(2) If any such contact, it is felt, has to be made, it is better if done in writing so that there is a full record of thecommunication.

(3) Nominating institutions might sensibly consider their rules as to nominations and as to whether they do or do notwelcome or accept suggestions from one or more parties as to the attributes or even identities of the person to be nominated by the institutions. If it is to be permitted in any given circumstances, the institutions might wish to consider whether notice of the suggestions must be given to the other party."

The full text of the judgement is available here.