Unsolicited preliminary views rendered Adjudicator’s decision a nullity

In a recent case heard before His Honour Judge Waksman QC in the Technology & Construction Court on 6th July 2011, it was held that there was apparent bias on the part of the Adjudicator, Mr Atkinson, leading to a dismissal of the Application for Summary Judgment to enforce his decision dated 17th May 2011.

The Referring Party, Galliford Try Infrastructure, commenced an adjudication by issuing its Referral to Mr Atkinson on 27th March 2011.  It appears from the Judgment that Mr Atkinson experienced some initial difficulty in obtaining a response from the Responding Party, Lanes Group Plc.  On 14th April 2011 Mr Atkinson issued a substantial document entitled “Preliminary Views and Findings of Fact”.  At the time of issuing this Preliminary Views document, Mr Atkinson had not received submissions from Lanes.  Although there were no submissions from Lanes at that time, it had indicated that the Adjudicator would receive submissions in due course.

The Preliminary Views document was issued in the form of a draft Decision.  However, there were qualifications made by Mr Atkinson, clearly marked, to the effect that any statements in the way of findings or conclusions were not intended to be decisions of the Adjudicator but “Preliminary Views and Findings of Fact preparatory to the decision”.  Further, it was said that “The Preliminary Views and Findings of Fact are a step in making the decision and I am not bound by them”.

The Preliminary Views document then went on to set out the Adjudicator’s views on various matters including defective work and termination.  He concluded, in a section dealing with repudiation, that Lanes was in repudiatory breach by reason both of its failure to progress with due diligence and its refusal to remove and make good the defective work (which repudiation had been accepted by Galliford Try).

At paragraph 72 of the Judgment, HH Judge Waksman QC said:-

“This document [containing the Adjudicator’s Preliminary Views] consisted of 35 pages in all.  On the face of it, and subject to the opening words of qualification (with which I deal below) it reads like a Judgment and one that must have taken some days to prepare.  It was obviously intended to be a Judgment at some point because of the preamble, background facts, recital of adjudication and so on, along with the list of issues which as a list was complete.  Given that on its face it looked like a draft Judgment, and one made before any Response from the other party, it does indeed appear as if the author (Mr Atkinson) has made up his mind.”

It was held that the Adjudicator’s words of qualification did not displace the overriding impression of a decision already made at a time when the Adjudicator had not received submissions from Lanes.  The language used in the Preliminary Views document was inconsistent with it being a “simple discussion document”.

The Judge was generally disapproving of the practice of Adjudicators issuing provisional views documents part-way through an adjudication.  It was commented that if such documents are ever to be appropriate then it is only when both sides have had their say.  That is to observe one of the basic rules of natural justice, to ensure that both sides are heard (occasionally referred to as the legal principle “Audi Alteram Partem”).

The Judge noted other unsatisfactory features of the Preliminary Views document.  It was also noted that neither party had requested the Adjudicator to produce preliminary views.  Even if the parties had done this, the Judge was of the view that this might not assist in a process meant to be concluded in a narrow time frame and confined in scope.

There was an overriding impression from the Preliminary Views document of a decision already made.  The Preliminary Views document would lead to a fair-minded observer to conclude that there was apparent bias on the part of Mr Atkinson.

This is the first TCC decision to have considered potential apparent bias arising from the issue of an Adjudicator’s preliminary views document.  In future adjudications, Adjudicators will need to be very cautious about the way that preliminary views are expressed prior to issuing the decision.  In fact, caution will be required in respect of any view expressed prior to the reaching of the Adjudicator’s decision.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

 

For further information, please contact Philip Eyre at