Amec Capital Projects Ltd v Whitefriars City Estates [2004] EWCA Civ 1418

This summary was provided by CMS Cameron McKenna LLP.

For more information visit

An adjudicator in a construction dispute is required to afford procedural fairness to the adjudicating parties. One aspect of this is that the adjudicator must not, to the fair-minded and informer observer, give the appearance of being biased in favour of one party or the other. The central issue in the unusual case of Amec Capital Projects Ltd v Whitefriars City Estates Ltd was whether an adjudicator had failed to act impartially, and thereby denied one party its right to natural justice.

Court of Appeal; Kennedy, Chadwick and Dyson LJJ

28 October 2004

The relevant facts were as follows. Amec was engaged by Whitefriars to carry out construction work at a development in Central London. The contract between the parties was an amended JCT Standard Form of Building Contract with Contractors Design, 1998 edition. The contract contained a dispute resolution clause which permitted either party to refer disputes between them to resolution by way of adjudication, consistently with the provisions of the Housing Grants, Construction and Regeneration Act 1996. The contract identified a quantity surveyor who was to act as adjudicator if the adjudication procedure was invoked. The adjudication clause of the contract also provided that if the identified adjudicator was not available to act as adjudicator, the identified adjudicator was to nominate a replacement adjudicator to decide the dispute.

A dispute arose between Amec and Whitefriars over Amec's entitlement to payment for work performed. Amec sought to refer this dispute to adjudication. But instead of seeking to refer the dispute to the adjudicator identified in the contract, Amec approached the Royal Institute of British Architects ("RIBA" – an adjudicator nominating body under the Scheme for Construction Contracts) and requested it to nominate an adjudicator. The RIBA did nominate an adjudicator, being an adjudicator different to the one nominated in the contract, who then purported to decide the dispute. 

The adjudicator made a decision in Amec's favour. Amec sought to enforce the adjudicator's decision in court. Whitefriars successfully resisted the enforcement application, on the basis that the adjudicator who purported to decide the dispute did not have jurisdiction to do so. The adjudicator was not the person identified in the contract, nor his nominee. 

With the first decision set aside, Amec sought to start an adjudication afresh. What probably would have happened, had matters not taken an unexpected turn, was that Amec would have issued an adjudication notice to the adjudicator nominated by the contract. But there were two complications. First, the intended adjudicator's forename had been written incorrectly in the contract – it was shown as "George" instead of "Geoffrey" (his surname was stated correctly in the contract), so arguably the contract did not name an actual person to act as adjudicator. This was not necessarily an insurmountable problem, though, as clearly there had been some kind of typographical mistake, and the parties obviously intended a particular person ("Geoffrey") to act as adjudicator. However, there was a second problem, which was the critical problem, in that the person the parties contemplated acting as adjudicator had, sadly, died shortly after the court set aside the first adjudicator's decision (that is, the decision of the adjudicator nominated by the RIBA). And the contract did not provide a mechanism for appointing a replacement adjudicator, in these circumstances. So there was a breakdown in the contractual machinery for appointing an adjudicator. The consequence of this, in law, was that the adjudication procedure detailed in the contract fell away, with the adjudication regime under the Scheme for Construction Contracts filling its place.

Cognisant of this, Amec applied (once again) to the RIBA for the appointment of an adjudicator, in accordance with the Scheme. The RIBA, believing that it would be in the interests of saving time and cost, nominated the same adjudicator who had decided the dispute originally (where his decision was subsequently set aside) to act as adjudicator again. The dispute before the adjudicator, the second time around, was cast in similar terms to the one he had decided earlier. 

The second adjudication took place before the adjudicator, and he made a decision in Amec's favour. Amec then sought to enforce the adjudicator's decision in court. Whitefriars again resisted the enforcement proceedings. This time, the main ground on which it said the adjudicator's decision should not be enforced was that the adjudicator had not acted in accordance with the principles of natural justice.

Whitefriars contended that, to a fair-minded and informed observer, the adjudicator's conduct would give the appearance of someone who had not brought an impartial mind to bear on the resolution of the dispute. There were a number of arguments deployed by Whitefriars as to why this was the case.

One was that because the adjudicator had made a particular decision (in Amec's favour) in the first "adjudication", a reasonable and objective bystander would conclude that he would be likely to make a similar decision in the second adjudication, where the issues were essentially the same. This argument met with success initially before the trial judge, but was rejected by the Court of Appeal. The Court held that the mere fact that the adjudicator had, in substance, decided the issues before was not enough to produce the appearance of bias, when the adjudicator came to determine the same issues again. The Court of Appeal held that it would be surprising if the adjudicator approached the second adjudication differently, given the near-identical nature of the issues. Indeed, when the adjudicator's first decision was set aside, no challenge had been made to his actual findings – simply his jurisdiction to hear the dispute. But none of this meant that, in objective terms, it could be said that the adjudicator had closed his mind, and was therefore likely to be partial when he heard the parties' evidence and submissions, second time around. The Court of Appeal emphasised that allegations of apparent bias needed to be examined closely, otherwise the purpose of adjudications could be defeated too easily.

A second argument that Whitefriars ran was that the adjudicator had, during the second adjudication, gone off and obtained legal advice from a firm of solicitors when a challenge was made by Whitefriars to the adjudicator's jurisdiction, without disclosing that advice to the parties, and giving them an opportunity to make submissions on that advice, before he made his decision on his own jurisdiction to hear the dispute. The issue of obtaining legal advice is a matter which is of particular importance to adjudicators, who often seek legal advice when a challenge is made to their jurisdiction. The trial judge held that the failure of the adjudicator to allow the parties to make submissions on the legal advice received did indeed constitute a breach of the rules of natural justice. But the Court of Appeal disagreed. The Court of Appeal held that although it was advisable for an adjudicator to give the parties an opportunity to make submissions on any legal advice received, if time permits this to be done, any "decision" made by an adjudicator as to the existence or not of his jurisdiction is of no effect in law, and the requirements of procedural fairness only dictate that the parties should be given a fair opportunity of making submissions on matters that affect their substantive rights. To elaborate: an adjudicator either has jurisdiction to hear a dispute, or he does not. Any decision made by the adjudicator as to the existence, or non-existence, of his jurisdiction therefore does not affect the rights of either party. The decision may possibly offer some guidance as to how a court might determine the issue of jurisdiction, but that is as far as the adjudicator's decision goes. Only a court can provide an authoritative statement of the adjudicator's jurisdiction. This being the case, it is strictly speaking inessential that an adjudicator should allow the parties to make representations before making a "decision" as to his jurisdiction, because his "decision" has no bearing on their respective rights.

A third argument that Whitefriars deployed, both before the adjudicator and before the Court, was that the adjudicator should have recused himself (that is, withdrawn from the adjudication) because Whitefriars had threatened to bring proceedings against him personally for their costs associated with the first adjudication, where the adjudication was later determined to be a nullity as a result of the adjudicator lacking jurisdiction. After the threat of litigation was made by Whitefriars, the adjudicator responded by refusing to stand down as adjudicator, and he then proceeded to hear the adjudication. The adjudicator assured Whitefriars that he would act impartially, and in accordance with the correct procedure. In the opinion of the Court of Appeal, a fair minded and informed observer would not have doubted the ability of the adjudicator to act impartially in the face of Whitefriars' threats, and moreover the adjudicator's conduct was commendable in that he had shown "a resolute refusal to succumb to some rather crude bullying".

The Court of Appeal therefore overturned the decision of the trial judge, thus allowing for the enforcement of the adjudicator's decision. The unusual facts of Amec Capital Projects Ltd v Whitefriars City Estates Ltd mean that the case will be of limited application to most adjudications. But the decision of the Court of Appeal provides valuable guidance on how the courts will approach challenges made to adjudicators' decisions on the basis that one party has not been afforded natural justice. The case is also of importance to adjudicators, in providing guidance as to how challenges to their jurisdiction should be handled.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit

Click here to read full-screen | Click here to print the case