Parties familiar with adjudication sometimes prefer specific adjudicators, or adjudicators with specific skills or qualifications, to decide their disputes. The simplest and most frequent way of parties ensuring they get the “right” adjudicator is to write him or her into the contract as a named adjudicator. The position is a little trickier, however, where the mechanism for appointment is nomination by a nominating body (e.g. the RICS, RIBA etc).
In a recent case the solicitor for one of the parties tried to line-up the “right” adjudicator, who was on RIBA’s panel of adjudicators, where the construction contract named RIBA as the nominating body. He rang the targeted adjudicator to check on his availability, and then wrote to RIBA suggesting that the gentleman be appointed as adjudicator. RIBA appointed him as adjudicator. He then heard the parties, and gave his decision.
In resisting enforcement of the decision, the defendant said that the adjudication was tainted by the appearance of bias. The bias was said to arise from, among other things, the fact that the solicitor telephoned the adjudicator to check his availability. The court disagreed, saying that there was nothing in that to give rise to the appearance of bias. However, the court did not endorse a party making unilateral contact with an adjudicator before an adjudication is started.
The following recommendations arise from the judgment:
- Individual parties and adjudicators/potential adjudicators should limit unilateral contact with each other at all times. Where this cannot be avoided, correspondence should be in writing so that a full record exists (consider copying this to the other side).
- Consider carefully whether to request the appointment by a nominating body of a specific individual. To reduce the chances of a suggestion of bias, limit any representations to a request for an adjudicator with specific skills, such as a legally qualified architect.
- It is interesting to contrast the appointment of adjudicators with the appointment of arbitrators. Where a three-member arbitration tribunal is to be appointed, and each party nominates its own arbitrator (and, depending on the applicable rules, the two arbitrators nominate a chairman), the party-appointed arbitrators frequently are expected (rightly or wrongly) to champion their appointing party’s cause, without the suggestion of bias ever arising.
Reference: Makers UK Limited v The Mayor and Burgesses of the London Borough of Camden  EWHC 1836 (TCC).