In this case, there was a rare refusal by the TCC to enforce an adjudicator's decision due to the possibility of bias.
The claimant, Paice, had already embarked upon, and lost, two adjudications involving the same adjudicator (the first adjudicator), when they phoned his office to discuss their disappointment in their advisors, the outcome of the adjudications, and the behaviour of defendant MJH. One of the telephone conversations with the adjudicator's office manager lasted over an hour.
After their final account was rejected, defendants MJH then initiated a third adjudication; this was decided by a different adjudicator. This Paice also lost after they failed to serve a valid pay less notice in time.
Paice therefore started a fourth adjudication seeking a decision on the value of MJH's account and a repayment. The first adjudicator was appointed again, and MJH's representative queried whether there had been contact with Paice in the intervening period since the earlier adjudications. The adjudicator denied this, and MJH then requested telephone records from the first adjudicator and Paice, which request was ignored. MJH sought an injunction to prevent the adjudication proceeding but it was not granted. The adjudication concluded with a decision that MJH should repay to Paice the vast majority of its final account payment.
Evidence of telephone contact between Paice and the first adjudicator emerged (by anonymous letter) following the decision and its enforcement was challenged on the grounds of bias. The judge found that the failure by the adjudicator to disclose the conversations, together with' ill-judged' criticisms of MJH's case and a statement made expressly in support of Paice's application for summary judgment, gave rise to a real possibility of bias and accordingly the application was refused. Coulson J, however, expressed sympathy for Paice, who he deemed had been ill-served by the adjudication process and the adjudicator's 'misjudgements'.
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