Glencot v Ben Barrett Ltd [2001] EWHC Technology 15

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

Summary judgment would not be given automatically where an adjudicator had also acted in a mediation role between the parties, as there could be an arguable case of perceived bias of the adjudicator.

HHJ Humphrey Lloyd QC, Technology & Construction Court.

2 and 13 February 2001

B appointed G under a sub-contract. Disagreement arose over sums due. G referred the dispute to an adjudicator and a meeting was scheduled for 29 September. Shortly before the meeting the parties agreed a settlement and informed the adjudicator. However, there were still disputes over discounts and the adjudicator agreed to assist on the basis that he would resume his role as if negotiations broke down. After some 6 hours a settlement figure was agreed but other points were unresolved. The adjudicator confirmed his understanding of what he had been asked to do in assisting the negotiations and requested that if any party considered his impartiality had been compromised by his presence at the negotiations they should inform him so that he could withdraw. Neither objected and a few days later he met both parties. B then stated that the adjudicator's position had been compromised and he should withdraw. The adjudicator decided to take advice from Counsel. Following advice from Counsel the adjudicator told both parties that he would not withdraw. He said that he detected no prejudice and would continue with the adjudication.

The adjudicator decided in favour of G. B refused to pay. G started enforcement proceedings and sought summary judgment. Whether B had a chance of succeeding at a full hearing of the issue was dependent on whether the adjudicator's conduct meant in law that he was no longer impartial and therefore the decision was unenforceable or whether B's conduct prevented it making such a challenge as it had objected very late.

The HGCRA requires an adjudicator to act impartially. On the first issue of bias, the Court examined the cases and concluded that in law it was possible to argue objectively that the adjudicator had failed the test. B had a real prospect of being able to show this at a trial. The adjudicator's actual state of mind was irrelevant. It was a question of how an outsider would view his position.

G and B had, however, agreed to this process. Had B lost the right to object when it failed to inform the adjudicator of any objection? The Court concluded that failure to reply immediately would not be sufficient to deprive a party of its right to say that the adjudicator was no longer able to carry out his duties impartially. However, B's immediate failure to respond should be taken into account. The adjudicator and G thought that the adjudication had begun again. It was held that it would not be right at this stage that G should be left with nothing following B's participation in the dispute process. The Court looked at the part of the dispute that might be affected by bias. The Court ordered an interim payment of £107k to G and a speedy trial about the possible balances yet to be paid.

Summary judgment would not be given automatically where an adjudicator had also acted in a mediation role between the parties, as there could be an arguable case of perceived bias of the adjudicator.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

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