Discain Project Services Ltd V Opecprime Developments Ltd
Technology and Construction Court
His Honour Judge Peter Bowsher QC
11 April 2001
The adjudicator ordered the employer to pay the contractor a specified sum of money. Court enforcement proceedings were brought by the contractor but its application for summary judgment was refused (see No 1). The employer was given leave to defend on the basis of the following triable issues: (1) Did the rules of natural justice apply to the hearing before the adjudicator? (2) If so, were there one or more breaches of those rules?
Judge Bowsher in dealing with the adjudicator’s conduct stated that whilst there was no reason in law why an adjudicator should not have private telephone conversations with individual parties to the adjudication, it would make life a great deal easier for the adjudicator if he declined to do so. The judge then applied the test for apparent bias set out by the Court of Appeal in Director General of Fair Trading v Proprietary Association of Great Britain (2000). In applying this test the judge held that although the adjudicator was not actually biased, the evidence of the communications between the adjudicator and the parties’ representatives, and in particular the contractor’s surveyor, would have led a fair-minded and informed observer to conclude that there was a real possibility or a real danger (the two being the same) that he was apparently biased by inference. The adjudicator had on a number of occasions had private conversations with representatives of the parties about the issues raised in the adjudication. The adjudicator’s decision should not be enforced by way of summary judgment because the adjudicator had not acted in accordance with the rules of natural justice with the result that there was a substantial and relevant breach of those rules or conduct the adjudication as fairly as the limitations imposed by Parliament in the Construction Act 1996 permitted.
The courts recognise that the nature of adjudication is such that an adjudicator cannot be expected to conduct it in precisely the same way as a judge conducts a case in a court of law. However, if an adjudicator’s conduct is such that he could be said to be apparently biased, he will not have acted in accordance with the rules of natural justice and his decisi