CSK Electrical Contractors Ltd v Kingwood Electricl Services Ltd (TCC - 11.3.2015)
CSK ELECTRICAL CONTRACTORS LTD V KINGWOOD ELECTRICAL SERVICES LTD
TECHNOLOGY AND CONSTRUCTION COURT
11TH MARCH 2015
The adjudicator was nominated by CEDR. The application to CEDR for the appointment, made by the sub-contractor’s representatives, included the sentence "It is preferred that any of the adjudicators in the attached list are not appointed." The evidence was that that sentence was included as an error because no list was in fact attached and may have come from a template that those representatives habitually used.
Coulson J, in holding that the sub-contractor’s statement did not constitute a fraudulent misrepresentation, stated that the situation was entirely different to that in Eurocom v Siemens (2014) in which Ramsey J identified three issues arising in a fraudulent misrepresentation case, namely (i) whether a false statement was made (ii) Whether any false statement was made fraudulently or recklessly and (iii) The effect of any such statement. Ramsey J held that (i) The referring party's representatives fraudulently misrepresented to the adjudicator nominating body the fact that a lengthy list of potential adjudicators could not be appointed because they would have a conflict of interest (ii) In reality there were no such conflicts of interest and the ruse was designed by the claimant to avoid the appointment of the adjudicators on the list and (iii) This irrevocably tainted the appointment of the adjudicator. In the instant case there was no false statement because there was no list with the results that (i) There could be no question of fraud or recklessness and (ii) There was no statement and therefore no effect.
The sub-contractor also submitted that even if the list had been completed, it would not have amounted to a false statement because it was simply a statement of a preference and could not therefore amount to the sort of deliberate misrepresentation which occurred in Eurocom v Siemens. Coulson J stated that whilst it was unnecessary to decide that submission, there might be circumstances in which a stated preference could amount to a misrepresentation, although that would never be very straightforward.