ADJUDICATORS SHOULD NOT ISSUE DOCUMENTS EXPRESSING PROVISIONAL VIEWS

In Lanes Group plc v Galliford Try Infrastructure Ltd [2011] EWHC 1722 (TCC), [2011] All ER (D) 105 (Jul) Judge Waksman QC, sitting as a judge of the High Court, held that the appointment of an adjudicator following a reference to adjudication did not prevent the referring party from declining to proceed with that adjudication and choosing instead to refer the same dispute to a second adjudicator. The ability to refer the same dispute to a second adjudicator is not, however, available where the first adjudicator has produced his decision (and it may not be open where the first adjudication has commenced but has not yet concluded). But the mere fact of appointment of an adjudicator is not a bar to the commencement of a fresh adjudication. Judge Waksman also held that a case of apparent bias on the part of the adjudicator had been made out as a result of the adjudicator’s decision to issue a document entitled ‘preliminary views and findings of fact’ which resembled a draft judgment and was issued without consultation with the parties and at a time when the adjudicator had not heard from one of the parties. Further, adjudicators were discouraged from issuing a document expressing provisional views on which parties were then invited to comment.