When deciding who to appoint as adjudicator, the referring party may strive to obtain the appointment of a particular individual as adjudicator because it perceives that individual to be more sympathetic to the merits of its case. In certain circumstances, it may be tempting to engage with the adjudicator or ANB without involving the other party to the dispute. This will normally lead to allegations of bias from the other party. The simplest way to avoid the possibility of an adjudicator’s decision being overturned is for all communication to or from the adjudicator to be in the presence of or copied to all parties in the adjudication at the time of the communication. If in exceptional circumstances that is not possible, a detailed record of the communication should be circulated to all parties soon after it takes place.

A recent example of where pre-adjudication contact led to a finding of apparent bias is the case of Mr Paice and Mrs Springall v Matthew Harding (t/a M J Harding Contractors) [2015] EWHC 661 (TCC). There, the contractor held an hour long telephone conversation with the adjudicator’s practice manager, wherein they discussed substantive matters that related to the forthcoming adjudication. The practice manager outlined the content of that conversation to the adjudicator soon afterwards. The adjudicator decided not to communicate the details of that conversation to the claimants, neither when he was told about it, nor when he was specifically asked about it in an email during the adjudication, some three months later. The court found that the adjudicator’s deliberate decision not to disclose the content of the conversation was sufficient to amount to an act of apparent bias. It was no defence to argue that the conversation took place two months before the commencement of the adjudication, nor was it a defence to argue that the conversation took place between the contractor and the adjudicator’s practice manager and not the adjudicator himself. However, the court also held that had the adjudicator disclosed the content of conversations during the adjudication when he was asked, even though three months had elapsed, he would have exonerated himself at that point.

http://www.bailii.org/ew/cases/EWHC/TCC/2015/661.html