Last year’s dispute about a re-roofing and glazing subcontract for a Network Rail infrastructure depot has gone back to the courts. Question 1 for the Court of Appeal was whether a claimant can go adjudicator shopping. Can it let an adjudication lapse, if it doesn’t like the appointed adjudicator, start another adjudication and get a different adjudicator? Not an appealing proposition, said the Court, but adjudicator shopping is legitimate. Sometimes adjudications need to be restarted and, unlike arbitration, an adjudicator has no powers until there has been a referral. Even if there has, a head of claim can be dropped and raised in a later adjudication.
Question 2 was whether the adjudicator’s 35 page “Preliminary Views”, produced for the parties’ comments before seeing the response to the referral, meant his decision was a nullity because of apparent bias. No, said the Court. A judge can set out a provisional view at an early stage, for the parties to correct any errors or concentrate on matters apparently influencing the judge. A judge must not reach a final decision prematurely but that is different from reaching a provisional view that is disclosed to help the parties, which is what had happened in this case. The courts are reluctant to strike down adjudication decisions for breach of natural justice or on similar grounds, unless the complainant’s case is clearly made out.