Allowing one contracting party to choose the adjudicator might look attractive to the appointor but does it work? The London Borough of Camden had just such a clause in its contract with building consultants and in a fee dispute the court had to decide not only if the construction contract was in writing, and just how the Scheme adjudication provisions should apply if the contract arrangements did not comply with the Construction Act, but also whether Camden was really entitled to appoint the adjudicator in its own dispute.
Mr Justice Akenhead decided that the contract was all in writing, so that the unamended Construction Act applied, but a contract clause suspending an adjudicator’s decision as to payment meant the adjudication provisions were noncompliant. But were they completely replaced by the Scheme’s provisions or was just the relevant Scheme provision used to fix the problem? The judge confirmed that, if the contract has just one material non-compliance, all the Scheme adjudication provisions apply instead. And the contract clause allowing Camden to choose the adjudicator did not work, not only because the contract adjudication provisions were to be disregarded but it was also inherently unsound and contrary to the HGCRA policy of having impartial adjudicators for the contract to specify that one side should nominate the adjudicator.