By personal appointment: Makers v Camden

Unbeknown to the party on the other side of the dispute, the firm that started the adjudication steered the adjudicator appointing body to a preferred adjudicator. Very helpful, said the nominating body and duly appointed the chap. Then the other party found out. “This strikes us,” wrote Camden council, “as highly unconventional.”

Camden was peeved, even suspicious about the way main contractor Makers UK had teed-up who would adjudicate. Camden was quite wrong to use the word unconventional. It happens quite a lot and has been a subject of debate for ages. About half the folk say it’s okay and half say it’s not. The judgment by Mr Justice Akenhead is ever so welcome, at least to you adjudicator nominating bodies, who can breathe a sigh of relief. The judge said: “The fact that individuals within Camden are concerned by what has happened is not in itself material. Parties must avoid making mountains out of molehills, even if something happens that is outside their immediate experience.” We adjudicators in these 10 years of construction adjudication have become ever so used to molehills and mountains.

Makers was Camden’s main contractor on £4.3m of repairs and renewals work at the Whittington Estate in Highgate. The usual JCT intermediate contract was in place and when relations became strained, Makers went to its solicitor, Fenwick Elliott, and was advised to adjudicate. The JCT intermediate form points to the RIBA as the adjudicator nominating body and Makers’ solicitor saw a snag with this. The solicitor knew the type of dispute was a question of law and weight of evidence, which meant it was best suited to an experienced lawyer adjudicator rather than an architect adjudicator.

Sometimes the type of dispute points the other way, and an architect is ideal, but not this time. So Makers’ solicitor looked around for a construction lawyer on the RIBA panel. There were not many. It narrowed suitability down to one and telephoned him to check availability. Oh, oh, that telephone call became a molehill. No, a mountain. The application form to the RIBA identified the name of the preferred adjudicator. The RIBA said fine, and notified both parties it had selected the suggested adjudicator. Camden climbed to the top of its mountain and yodelled “foul”.

We adjudicators in these 10 years of construction adjudication have become ever so used to molehills and mountains

Now what does an adjudicator do about this turn of events? Well, he has to decide whether the events give the appearance of bias; decide, too, if he was chosen because he has a special relationship with one of the parties. For example, the lawyer adjudicator might be a part-time molehill builder for Makers.

The adjudicator made clear to Camden and Makers that, notwithstanding one side having put his name in the frame, there was no appearance of sin. Camden said he was wrong but would play the match and come to court afterwards if it lost. It did, and it did.

The judge was clear. There was nothing in the contract whether express or implied that barred the party seeking an appointment from making representations to the appointing body as to the attributes or even the name of the appointee. Further, the RIBA is an independent and respected institution, which holds itself out as able to nominate adjudicators. When a party suggests a name, it is entirely up to the appointing body whether it pays any attention; it can take it or leave it. Go further, it is not wrong or unhelpful for a party to make representations – it might even be sensible. So the idea of there being mischief and therefore a rule to prevent unilateral representations by the party seeking a nomination has no obvious support in commercial or practical terms.

Of course, if the strategy was driven by deception, some sleight of hand, intended to suborn the nomination system that would be intolerable. This was absolutely none of that, but, to be fair, it was a molehill that Camden was entitled to put on inquiry.

The adjudicator said that, notwithstanding one side having put his name in the frame, here was no appearance of, nor actual, sin

The judge had some observations:

• Unilateral contact before, during and after an adjudication is easily misconstrued

• If unilateral contact is made, do it in writing so as to provide a full record

• Nominating institutions might wish to consider whether notice of “suggestions” should be given to the other party.