Galliford Try International Limited (GTI) engaged Lanes Group Plc (Lanes) to re-roof a depot in Inverness under a CECA standard blue form of sub-contract.
On 28 April 2009, GTI terminated Lanes' employment under its sub-contract and/or claimed to have accepted Lanes' repudiatory breach. The issue was to be subject to arbitration in January 2012.
In March 2011, GTI commenced an adjudication seeking a declaration that it had lawfully terminated Lanes' employment under the sub-contract, or alternatively, accepted Lanes' repudiatory breach and claimed £2.7m in damages.
During the adjudication, and prior to Lanes serving its (delayed) response, the adjudicator issued a document entitled 'Preliminary Views and Findings of Fact' (the Preliminary View Document) which set out the adjudicator's findings on liability to date. The adjudicator's decision mirrored the Preliminary View Document and Lanes was ordered to pay circa £1.36m to GTI.
On 23 May 2011, Lanes issued Part 8 proceedings to challenge the decision. On 26 May 2011, GTI brought a separate claim to enforce. Lanes argued the decision was a nullity because:
- the adjudicator had no jurisdiction as GTI had previously commenced, but not pursued, an adjudication on the same point before a different adjudicator; and
- that the adjudicator's decision was a product of apparent bias.
When GTI submitted its application for the appointment of an adjudicator it requested a particular adjudicator but a different adjudicator was appointed by the nominating body, ICE. GTI objected to this adjudicator, and did not serve its referral notice, on the basis of a 'heated spat' between him and GTI's representative in another action which it claimed would give rise to an apparent bias.
It was held that an objective person would not have considered there to be apparent bias but GTI's decision not to continue to the adjudication did not give rise to an implied, absolute or qualified bar to starting the adjudication again. Whist this reluctance to restrict access to adjudication supports the key principle that a party can refer a dispute 'at any time', it does have potential to allow, to some extent, a party, despite it being in breach of the adjudication process (contractual or statutory), to choose an adjudicator it likes.
Lanes claimed that the Preliminary View Document showed that the adjudicator had already made up its mind. The judge concurred and commented that, notwithstanding the words of qualification, the overriding impression of the document was that a decision had already been made. As the document contained a preamble, background facts, recital of adjudication and a complete list of issues it appeared as though it was intended to be a judgment at some point and that the author had already made up its mind. Lanes' apparent bias argument was made and GTI's application for summary judgment to enforce the decision dismissed.
This decision should act as a warning to adjudicators who are considering expressing their provisional views during the course of adjudication that the courts may not view such expressions as 'helpful or appropriate'.