Paice v Harding (TCC - 5.8.2016)
Finola O’Farrell QC in giving her reasons for rejecting the allegation of apparent bias stated that whilst the adjudicator was appointed in the fifth adjudication to determine the same dispute that had been determined by the adjudicator in a previous adjudication between the parties, he was not required to consider, assess or adjudicate on the abortive decision produced by that adjudicator. The fifth adjudication was a fresh determination and not a review of the earlier abortive decision with the result, on an objective basis, that the adjudicator’s view of the previous adjudicator could not reasonably be considered to impact on the exercise he was required to undertake in the adjudication.
The contractor’s solicitor was aware from before the commencement of the fifth adjudication that the adjudicator had been approached to provide a reference for the previous adjudicator. If the reference was of such significance as the contractor now suggested, it was inconceivable that the contractor’s solicitor would not have raised it when the adjudicator accepted the appointment. The fact that the contractor’s solicitor did not ask the adjudicator whether a reference had been provided until two days before the decision indicated that he did not consider it to be material. It was noteworthy that the contractor’s solicitor in a letter that providing the previous adjudicator with a vague reference for a disciplinary hearing did not come close to a conflict of interest. There was no evidence to support the contractor’s suggestion that the adjudicator went further and provided assistance to the previous adjudicator in the RICS complaint.
It was noteworthy that when the adjudicator was first asked whether assistance was sought for the previous adjudicator, he immediately disclosed that he had provided a reference, subsequently invited the contractor to seek consent for disclosure of the reference, was not defensive and did not attempt to mislead or to avoid the question. Whilst the adjudicator's response in his letter to the contractor’s solicitor’s questioning was intemperate, it followed an unrelenting series of letters that went beyond reasonable questions designed to elicit information regarding his impartiality. Whilst the contractor might well have been over-sensitive to issues of perceived impartiality and fairness given the serial adjudications in this matter and the general animosity between the parties (i) The test for apparent bias is an objective one and (ii) A fair-minded and informed observer would have concluded that there was no real possibility that the tribunal was biased.