Galliford Try engaged Lanes to carry out re-roofing work based on the ICE “Blue” Form Terms and Conditions. Galliford Try terminated Lanes’ employment claiming to have accepted a repudiatory breach by Lanes and sought damages.

A dispute arose and in accordance with the subcontract, Galliford Try contacted the ICE to request the appointment of an Adjudicator and sent them a copy its Notice of Intention to Refer. The ICE subsequently appointed an Adjudicator (“Adjudicator 1”). However Galliford Try were not satisfied with the appointment and therefore refused to serve its Statement of Case in accordance with the terms of the subcontract. Accordingly, Galliford Try contended that as there had been no Referral, Adjudicator 1 did not have jurisdiction. They then served a fresh Notice of Adjudication together with a request to the ICE for the appointment of a new Adjudicator which the ICE duly appointed (“Adjudicator 2”).

Following Adjudicator 2’s appointment, Lanes then made an unsuccessful application for an injunction to restrain Galliford Try from continuing with the adjudication.

Prior to issuing his final decision, and prior to Lanes serving its Response, Adjudicator 2 issued a “Preliminary Views and Findings of Fact” document. One month later, Adjudicator 2 issued his decision and which followed the “findings” on liability made in the Preliminary Views Document and reproduced much of its language and content.

Lanes brought the current proceedings and contended that the decision of Adjudicator 2 was a nullity because:

1. Adjudicator 2 had no jurisdiction to make the decision as Galliford Try had previously commenced, but not pursued, an adjudication on the same point before Adjudicator 1; and/or
2. Adjudicator 2’s decision was the product of apparent bias.

Galliford Try had brought separate proceedings to enforce Adjudicator 2’s decision and both proceedings were heard together.

The Judge found that Galliford Try’s failure to serve its Statement of Case was a breach of the implied adjudication contract between the parties; however such breach did not act as a qualified or implied bar to the offending party to commencing the adjudication again. The first adjudication had simply become a nullity.

The Judge held that the Preliminary Views Document on the face of it read like a draft judgment which had been made before Lanes had served its Response, and gave the impression that Adjudicator 2 had already made up his mind and the words of qualification in it did not remove the overriding impression that a decision had already been made. Accordingly, the Judge was satisfied that there had been apparent bias towards Galliford Try and dismissed Galliford Try’s application to enforce.