Lanes v Galliford Try [2011] EWCA Civ 1617

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(1) The English Court of Appeal held that the claimant in an adjudication may, if it has not served its referral notice, let the adjudication lapse and commence a new adjudication before a different adjudicator. (2) A preliminary view issued by an adjudicator prior to the final decision will not demonstrate bias unless it is apparent to a fair minded observer that the adjudicator has reached a final decision before receiving submissions and evidence from both parties.

The Court of Appeal, LJ Richards, LJ Stanley Burton and LJ Jackson

The Court of Appeal was asked to consider three appeals from the decisions of the Technology and Construction Court (“TCC”) in relation to the jurisdiction of an adjudicator and enforcement of an adjudication award.


Lanes Group Plc (“Lanes”) agreed under a sub-contract with Galliford Try Infrastructure Ltd (“Galliford”) to carry out works at a traction maintenance depot in Scotland. The sub-contract was based upon the CECA “blue form” of sub-contract, and incorporated the ICE Adjudication Procedure (“the Procedure”). The sub-contract was terminated by Galliford following delays to the sub-contract works. Lanes claimed that the sub-contract works had been extensively varied by Galliford that Lanes was therefore entitled to substantial extensions of time and that the sub-contract had been wrongfully terminated by Galliford. Lanes claimed approximately £2 million in damages. Galliford alleged that Lanes had not proceeded with the works with due diligence and that Galliford had therefore been entitled to terminate the sub-contract. Galliford claimed approximately £2.7 million in damages. The dispute was referred to arbitration.

Adjudicator’s Jurisdiction

While the arbitration was proceeding, Galliford decided to seek the interim remedy of an adjudication award. To this end Galliford served an adjudication notice on Lanes and applied to the Institute of Civil Engineers (“ICE”) to appoint an adjudicator. The following day the ICE appointed Mr Howard Klein as adjudicator.

Following the appointment, Galliford’s solicitors decided not to send the referral notice to Mr Klein. This was contrary to Clause 4.1 of the Procedure. The reason for their decision, however, was that Galliford’s solicitors had had a robust clash with Mr Klein in an earlier case and they therefore honestly, but, as it turned out, mistakenly believed that Mr Klein was disqualified from entering upon the adjudication on the grounds of actual or apparent bias. Instead of serving the referral notice, Galliford’s solicitors served a fresh notice of adjudication and sought a fresh appointment from the ICE. The ICE appointed Mr Daniel Atkinson as adjudicator.

Lanes’ solicitors protested that Mr Atkinson did not have jurisdiction, as Mr Klein rather than Mr Atkinson was appointed to resolve the dispute. Lanes commenced proceedings in the TCC to restrain Mr Atkinson from proceeding with the adjudication on the grounds that Galliford’s failure to serve the referral notice was a repudiatory breach of the agreement to refer disputes to adjudication, which Lanes had accepted. In this, Lanes were unsuccessful.

The adjudication before Mr Atkinson therefore continued.

Preliminary View

In the course of the adjudication, Lanes did not serve a response by the deadline set by the adjudicator, and four days later, Mr Atkinson submitted to the parties a document entitled “Preliminary Views and Findings of Fact” (“Preliminary View”). The covering letter for the Preliminary View set out as follows:

“… The date for the Response … has passed and Lanes has made no submissions at all on the substantive issues. … Accordingly, in order to assist me in my examination of the issues referred to me, in my ascertainment of the facts and the law and in order to allow the Parties the opportunity to make further submissions on the issues I enclose Preliminary Views and Findings of Fact on some of the initial issues raised in the Referral. …

The Preliminary Views and Findings of Fact are a step in making my Decision and I am not bound by them nor do I commit myself to communicate nor issue amendments or further Preliminary Views and Findings of Fact.”

Following the Preliminary View, both parties made comments and submissions in relation to it. The outcome of the adjudication, following a correction, was an award to Galliford of approximately £1.4 million with Lanes being liable for the adjudicator’s fees.

Following this decision, Lanes commenced further proceedings in the TCC in which they sought declarations that Mr Atkinson’s appointment and his subsequent decision were invalid. The TCC held that Galliford had been entitled to start the second adjudication despite allowing the first adjudication to lapse. Mr Atkinson had therefore been validly appointed and had jurisdiction. However, the TCC refused enforcement of Mr Atkinson’s decision. It held that he had appeared to have made his mind up by issuing the Preliminary View before he had received and considered Lanes’ submissions. Accordingly, his decision was a nullity on the grounds of apparent bias.


The Court of Appeal was asked to consider the following appeals:

  • Whether the TCC was correct in denying Lanes the injunction to restrain Mr Atkinson in deciding the dispute.
  • Whether the TCC was correct in finding that Mr Atkinson’s appointment was valid.
  • Whether the TCC was correct in finding that Mr Atkinson reached a final decision in the Preliminary View and, therefore, his decision was a nullity on grounds of apparent bias


The Court of Appeal held:

Restraint of Mr Atkinson in deciding the dispute

The Court of Appeal made clear that the initial decision of the TCC was right on this issue. The Court agreed that the concept of repudiation was not applicable to adjudications and in any event Galliford could not have forfeited its right to have other disputes adjudicated, so the contractual provisions for adjudication had to remain in force.

Validity of Mr Atkinson’s appointment

The Court of Appeal was not sympathetic to the proposition that a claimant in an adjudication could simply let an adjudication lapse if it did not approve of the appointed adjudicator. Nevertheless the Court held that Galliford’s attempt to appoint a different adjudicator was permissible by the contract and was not an abuse of process.

The Court of Appeal was persuaded that the contract between the parties, the Procedure and the statutory Scheme recognise the right to restart an adjudication in a variety of circumstances. Accordingly, the Court held that a failure to serve the referral documents did not preclude a party from starting an adjudication afresh.

Validity of the Preliminary View

The Court of Appeal considered the test which applies in considering apparent bias and pre-determination, namely, whether “the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”. The Court held that the fair minded observer in this case would have characterised the Preliminary View as a provisional view and not as a final determination reached before considering Lanes’ submissions and evidence. Mr. Atkinson’s view was not, therefore, tainted by apparent bias or apparent pre-determination.


Accordingly, the Court upheld the TCC’s decisions that Mr Atkinson had jurisdiction and could not be restrained from proceeding but reversed the TCC’s decision that his award was tainted with bias. Mr. Atkinson’s award would be enforced.

This summary was provided by CMS Cameron McKenna LLP.

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