AMEC Capital Projects Limited -v- Whitefriars City Estates Limited
Case reference:
[2004] EWHC 393 (TCC)
Friday, 27 February 2004
Key terms: Part 8 - jurisdictional challenge - identity of adjudicator - named adjudicator, natural justice - same dispute referred on a separate occasion - failure to disclose legal advice - telephone conversation - bias - failure to answer question put to the Adju
Amec, applied under Part 8 of the Civil Procedure Rules to enforce an Adjudicator’s decision dated 17th December 2003. The Adjudicator had decided that Whitefriars should pay Amec £597,371.78. This was the second adjudication between the parties relating to substantially the same subject matter. Amec had tried to enforce the first decision. HHJ LLoyd QC refused to enforce the decision as the contract named Mr George Ashworth as the designated adjudicator, but the adjudicator appointed was someone else. The second adjudication was referred to the same adjudicator, not Mr George Ashworth.
Whitefriars refused payment on the basis that the Adjudicator had not been named or identified in the contract. They argued that the Adjudicator should have been nominated by the managing partner of Davies Langdon & Everest after the sad death of Mr Geoffrey Ashworth (There being no Mr George Ashworth at DL&E). Second, they argued that the Adjudicator breached the rules of natural justice in that he would simply give the same decision on the second occasion as he had given in the first: the Adjudicator had obtained legal advice which was not disclosed to the parties for comment; he had had a telephone conversation with a Partner at the solicitors acting for Amec that went beyond merely administrative letters, and he would be bias because Amec had put the Adjudicator on notice they would be looking to him for the costs of their first adjudication. Third, they argued that the Adjudicator had failed to answer the question put to him.
HHJ Wilcox CMG QC held that the George Ashworth named in the Appendix to the contract was a misnomer, and in fact that the contract meant a Mr Geoffrey Ashworth. As Mr Geoffrey Ashworth had died before the matter was referred a second time and there was no machinery under the contract for appointing an adjudicator the scheme applied. Therefore the Adjudicator had jurisdiction. In respect of natural justice and bias he referred to the test set out in the House of Lords in Porter v Magill [2002] 2 AC 357. The test is whether at the time the Adjudicator gave a decision fair minded and informed of deserver having considered the facts will conclude that there is a real possibility that the Adjudicator was biased.
He concluded that in respect of the re-appointment that there was no bias. In respect of the Adjudicator carrying forward into the second adjudication legal advice he received in respect of the first, he considered that this was a breach of natural justice. If an adjudicator sought advice for a third party, then it was essential that he informed the parties in advance, notified the parties of how the questions had been put in order that the parties had the opportunity to evaluate the advice and comment. This did not happen. In respect of the telephone call, he believed that the conversation went beyond administrative matters, and concluded that a fair-minded observer would conclude that there was a real possibility that the Adjudicator was biased. Regardless of whether the Adjudicator had answered the right question, he declined to enforce the Award because of the breaches of natural justice.
Whitefriars refused payment on the basis that the Adjudicator had not been named or identified in the contract. They argued that the Adjudicator should have been nominated by the managing partner of Davies Langdon & Everest after the sad death of Mr Geoffrey Ashworth (There being no Mr George Ashworth at DL&E). Second, they argued that the Adjudicator breached the rules of natural justice in that he would simply give the same decision on the second occasion as he had given in the first: the Adjudicator had obtained legal advice which was not disclosed to the parties for comment; he had had a telephone conversation with a Partner at the solicitors acting for Amec that went beyond merely administrative letters, and he would be bias because Amec had put the Adjudicator on notice they would be looking to him for the costs of their first adjudication. Third, they argued that the Adjudicator had failed to answer the question put to him.
HHJ Wilcox CMG QC held that the George Ashworth named in the Appendix to the contract was a misnomer, and in fact that the contract meant a Mr Geoffrey Ashworth. As Mr Geoffrey Ashworth had died before the matter was referred a second time and there was no machinery under the contract for appointing an adjudicator the scheme applied. Therefore the Adjudicator had jurisdiction. In respect of natural justice and bias he referred to the test set out in the House of Lords in Porter v Magill [2002] 2 AC 357. The test is whether at the time the Adjudicator gave a decision fair minded and informed of deserver having considered the facts will conclude that there is a real possibility that the Adjudicator was biased.
He concluded that in respect of the re-appointment that there was no bias. In respect of the Adjudicator carrying forward into the second adjudication legal advice he received in respect of the first, he considered that this was a breach of natural justice. If an adjudicator sought advice for a third party, then it was essential that he informed the parties in advance, notified the parties of how the questions had been put in order that the parties had the opportunity to evaluate the advice and comment. This did not happen. In respect of the telephone call, he believed that the conversation went beyond administrative matters, and concluded that a fair-minded observer would conclude that there was a real possibility that the Adjudicator was biased. Regardless of whether the Adjudicator had answered the right question, he declined to enforce the Award because of the breaches of natural justice.