A&S Enterprises Ltd, the claimant, sought to enforce the judgment of an adjudicator against Kema Holdings Ltd. The defendant was ordered to pay £89,475.86. The claimant was a building contractor carrying out work in respect of a development in Alfreton, Derbyshire. The contract was a JCT 1998 Edition with Contractor Design including Amendments 1-4, dated 22 July 2003.

The defendant refused to pay, and defended enforcement proceedings on the basis that (1) the adjudicator appeared to be biased in his decision, (2) there was a breach of natural justice in that the adjudicator should have put the defendant on notice that all evidence was required from a witness, and (3) the adjudicator failed to consider the defendant’s submissions properly. In the decision the adjudicator stated that he had assumed that a certain witness would attend as he believed the witness was integrally involved in certain dealings. In addition, the adjudicator stated that he was surprised to be told at the start of a conference call that the witness was not, without any explanation, able to take part. He considered the failure “very unhelpful” and viewed the defendant’s submissions in the light of the witness’s unhelpful non-attendance.

Reference

HHJ Seymour QC held that it was not appropriate when considering an allegation of bias to consider each sentence in the decision, but instead to take a broader view and consider whole passages from the decision and ask how a fair-minded informed observer would view the situation. He came to the conclusion that a fair-minded observer would think that the adjudicator may have been biased by the non-appearance of the witness. Further, the adjudicator had not indicated that he wished to hear from that specific witness before the meeting, which was also a breach of the process by then going ahead and making a decision based upon that non-appearance without properly warning the parties before reaching the decision. He therefore refused to enforce the decision, and instead dismissed the action.

*Full case details
A&S Enterprises Ltd vs Kema Holdings, 27 July 2004, TCC, HHJ Seymour QC

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Postscript

Most successful challenges to the enforcement of adjudicator’s decision are those where an allegation of bias is made. This is another such successful challenge. It is very important that an adjudicator makes his or her directions clear and then follows them. More importantly, an adjudicator should not make any remarks that might be considered derogatory about the conduct of either party.