Ms O’Farrell QC has held that the defendants, Mr Paice and Ms Springall are entitled to have a recent adjudication decision of the previous adjudicator enforced. The Judge did not accept the submissions made by the claimant Mr Harding that the adjudicator’s decision was reached too late and therefore a nullity and there was apparent bias on the adjudicator’s part.

This was the fifth adjudication between Mr Paice and Ms Springall, the employers and Mr Harding, the contractor which concerned with the value of the contractor’s termination account. The same issue was dealt with in the previous adjudication but then the contractor successfully defended the enforcement proceedings due to a finding of apparent bias by the adjudicator.

Enforcement proceedings were commenced and resisted by the claimant on the grounds that he had not agreed to extend time for the adjudicator’s decision, which was consequently given out of time and that the fifth adjudicator, Mr Linnett was guilty of apparent bias because he had provided a character reference for the fourth adjudicator, Mr Sliwinski in connection with the RICS disciplinary hearing, but had not disclosed that fact to the parties.

Ms O’Farrell QC dismissed the first argument and accepted the defendants’ submission that the reservation in respect of the adjudication was based on the jurisdictional challenge and that once that challenge fell away, so too did the reservation.

As to apparent bias was concerned, the Judge said that she did not think the fifth adjudicator had an obligation to disclose the fact that he provided a general character reference for Mr Sliwinski. On an objective basis, Mr Linnett’s view of Mr Sliwinski could not reasonably be considered to impact on the exercise he was required to undertake in the adjudication.  The court noted that the circumstances in this case were “far removed from those that existed in the fourth adjudication or in Cofely”, which refers to Cofely Ltd v Bingham [2016] EWHC 240 (Comm).

The practical effect of this case is that an agreement to extend time for an adjudicator’s decision is likely to be taken to be an agreement to just that, whatever reservations continue to be expressed in relation to the adjudicator’s jurisdiction. Also, this case confirms that the test for apparent bias is objective and is whether an informed and fair minded observer, with knowledge of all the relevant circumstances, would conclude that there was a real possibility of bias. Finally, Ms O’Farrell QC commented that certain letters written by the contractor’s solicitor designed to elicit responses evidencing bias and the letters were described   as: “…an unrelenting series of letters that went beyond reasonable questions designed to elicit information regarding his impartiality…”