Construction Adjudication, Adjudicators Bias

Hello and welcome to this week's Blog, which continues to examine natural justice within construction adjudications. To recap on a previous Blog, there are two primary elements of natural justice within construction adjudication, one being the right to present your case and the other being each party having the right to a fair and unbiased hearing of their case. Please look at the previous Blog to understand the right to present your case, with this week's Blog focusing on an adjudicator displaying apparent bias.

In Porter v Magill 2002, the House of Lords set the test for bias or apparent bias as would the fair-minded observed believe there is a real possibility that the tribunal was biased. With this test, the House of Lords signalled that bias did not need to be proven, just that there is a chance of bias existing, hence should an adjudicator play golf at the same golf club as senior managers of one of the parties, this could be put to the court to decide if there was a possibility of the tribunal being bias and hence and adjudicators decision being unenforceable.

Another example of bias not needing to be proven but that could exist in the case of Discain Project Services Ltd v Opecprime Development Ltd 2001; the court ruled that although the adjudicator taking calls from one party on matters integral to the dispute, it could be viewed as an apparent bias, therefore, refused to enforce the adjudicator's decision. Single-party discussions with the adjudicator were further clarified in the case of Amec v Whitefriars 2004, where Lord Justice Dyson indicated that conversations with the tribunal and only one party should be circumvented.

To expand further where the adjudicator obtains information from an outside source, in the case of Balfour Beatty Construction Ltd. v. The London Borough of Lambeth 2002, the court ruled that where an adjudicator has obtained information from another source, this should be disclosed to the parties. Hence where the adjudicator consults an expert, the evidence from the expert should be put to the parties before the adjudicator makes their decision. In a broader point within bias or apparent bias, Lord Hewitt's ruling in the case of R v Sussex Justices ex parte McCarthy 1924 indicates that no action should be taken, which allows the challenge being muted of an inappropriate intrusion with the progress of justice.

Therefore when considering the breaches of natural justice, there are many legal precedents for the court to nullify an adjudicator's decision with the proper support. Suppose you are considering commencing an adjudication or have received a notice of adjudication. In that case, it is vital to be supported by experts at every step. Likewise, suppose you have been on the wrong end of an adjudicator's decision and which to discuss. In that case, Velocity Dispute Management can assist you. If you wish to discuss how Velocity Dispute Management can support you or discuss this Blog's content, please get in touch with admin@velocitydisputemanagemet.co.uk or book a strategic review meeting where one of our consultants will review your situation and create an action plan to utilise your rights in law to resolve the problem.

The content of this blog is intended for for information only and is not an alternative for legal advice. Velocity Dispute Management accepts no responsibility for the actions of another party as a result of this blog or the content of any third party source which this blog refers.