The Tale of the Unwanted Adjudicator

So, how do you get rid of an adjudicator you don’t like?

The case of Galliford Try Infrastructure v Lanes may provide an answer, albeit a tentative one.

The contract between GTI and Lanes incorporated the ICE Adjudication Procedure, which provided for an adjudicator to be nominated by the ICE in accordance with the ICE Adjudication Agreement. This required the referring party to serve the Referral Notice within 2 days of the adjudicator’s appointment.

GTI served its Notice of Adjudication, but when the ICE nominated Mr Klein as adjudicator GTI objected on the basis of a risk of bias or impartiality. GTI therefore indicated it would not proceed with the adjudication and did not serve the Referral Notice as required under the Adjudication Agreement.

GTI then served a fresh Notice of Adjudication and a new request to ICE to nominate another adjudicator.

Lanes sought an injunction preventing GTI proceeding with the second adjudication, or any further adjudication in respect of this particular dispute.

Lanes argued that GTI had repudiated the Adjudication Agreement, i.e. made it clear it no longer intended to comply with it by failing to serve the Referral Notice.

The Court held that the service of the Referral Notice within the specified time limits is mandatory and that if a party fails to do so the adjudicator will have no jurisdiction to reach a decision.

The Judge said it was difficult to see how an Adjudication Agreement can be repudiated because the Construction Act confers the right to refer a dispute to adjudication “at any time”. GTI did breach the Adjudication Agreement, but the Judge refused to grant an injunction.

COMMENT: The Judge commented that a breach of an Adjudication Agreement may give rise to a claim in damages, e.g. in respect of wasted costs. He also said that in certain circumstances a breach might justify an injunction (he didn’t say what circumstances).

The problem indentified by the Judge was that in theory parties not happy with the choice of adjudicator could allow adjudications to lapse until they get an adjudicator they are happy with. This is not recommended though as the Judge suggested that the Courts would look at ways of preventing such conduct which is arguably an abuse of process.