In Makers UK v Camden, Mr Justice Akenhead said:
- “It is better for all concerned if parties limit their unilateral contacts with adjudicators both before, during and after an adjudication; the same goes for adjudicators having unilateral contact with individual parties. It can be misconstrued by the losing party, even if entirely innocent.
- If any such contact, it is felt, has to be made, it is better if done in writing so that there is a full record of the communication.
- Nominating institutions might sensibly consider their rules as to nominations and as to whether they do or do not welcome or accept suggestions from one or more parties as to the attributes or even identities of the person to be nominated by the institutions.”
Here, there had already been three adjudications. This case was an attempt to enforce the decision in adjudication four. The adjudicator in adjudication four had previously been appointed in two of the first three adjudications. Some two months before the fourth adjudication, an hour-long telephone call had taken place between the claimants and the adjudicator’s office manager. The evidence showed that whilst there was some discussion about procedural matters, the call went further, with the claimants noting how dissatisfied they were with their previous advisors, discussing issues related to the first two adjudications as well as the final account which was to be the subject of adjudication four. No file note was made. The adjudicator knew about this conversation but did not disclose details of it either at the time of his appointment or later on when specifically asked about it during adjudication four.
The first question for the Judge was whether the adjudicator should have written to the parties, disclosing the conversations, and asking if they had any objections to his continuing to act. Mr Justice Coulson thought that it was “self-evident” that those conversations should have been disclosed.
They were material conversations, which included discussion about the final account with one party, and fairness required that the existence of those conversations should have been disclosed once the adjudicator learnt of his appointment. It did not matter that the call was with the practice manager. Nor did it matter that there was a two-month gap between the call and adjudication. What mattered was not the timing, but what the conversation was about. Finally, the adjudicator had had a second opportunity to reconsider and disclose the conversation but did not do so. This led the Judge to conclude that a fair-minded observer would consider that there was a real possibility that the adjudicator was biased. Accordingly, the claimants’ claim for summary judgment failed.