“If the Adjudicator dies or becomes ill or is unavailable for some other cause and is thus unavailable to adjudicate on a dispute or difference referred to him then…” [emphasis added] The clause then set out 2 further ways to appoint an adjudicator.

Appendix 1 provided that the adjudicator was to be a Mr George Ashworth of a particular firm, but no such person of that name worked at the firm. However, a person of a similar name, a Mr “Geoffrey” Ashworth was engaged at that firm. The RIBA appointed Mr Briscoe as adjudicator, and on 19th September 2003 HHJ LLoyd QC decided that Mr Briscoe had no jurisdiction and his decision was a nullity. A further notice of adjudication was served, but unfortunately Mr Geoffrey Ashworth had by that time sadly died. The RIBA once again appointed Mr Briscoe.

The issues that arose at the Court of Appeal were:

1) The scope of the appointment clause in the contract;

2) Whether there was a breach of natural justice by the adjudicator deciding something that he had already decided;

3) Whether there was an appearance of apparent bias carrying forward legal advice from the first decision to the second;

4) Whether the adjudicator had failed to deal with an issue in respect of clause 27 in his decision;

5) Whether a telephone conversation amounted to an appearance of bias;

6) Whether advice in respect of his jurisdiction amounted to an appearance of apparent bias; and

7) Whether the possibility of a claim against the adjudicator could amount to the appearance of bias on behalf of the adjudicator.

The Court of Appeal held that the words “referred to him” meant that a dispute had to be referred to the adjudicator before the two further ways of appointing a substitute adjudicator could apply. As the dispute had not been referred to the adjudicator before his death, clause 30A.3 of the contract did not apply. The contract therefore did not provide for the appointment of an adjudicator in the event that the adjudicator named in the contract was unavailable. The Scheme therefore applied, and the appointment by the RIBA was valid.

The carrying forward of a decision in respect of principally the same dispute (albeit that the first decision was a nullity) did not in itself create an appearance of bias. At paragraph 19 Lord Justice Dyson stated: “The question that falls to be decided in all such cases is whether the fair-minded and informed observer would consider that the tribunal could be relied on to approach the issue on the second occasion with an open mind, or whether he or she would conclude that there was a real (as opposed to fanciful) possibility that the tribunal would approach its task with a closed mind, pre-disposed to reaching the same decision as before, regardless of the evidence and arguments that might be adduced”.

He held, at paragraph 20, that:

“In my judgment, the mere fact that the tribunal has previously decided the issue is not of itself sufficient to justify a conclusion of apparent bias … It would be unrealistic, indeed absurd, to expect the tribunal in such circumstances to ignore its earlier decision and not to be inclined to come to the same conclusion as before, particularly if the previous decision was carefully reasoned. The vice which the law must guard against is that the tribunal may approach the rehearing with a closed mind … He will, however, be expected to give such reconsideration of the matter as is reasonably necessary for him to be satisfied that his first decision was correct.”

The adjudicator had considered the matter again, and therefore was not bias.

The legal advice that he had received in the first decision did not deal with clause 27, and therefore an informed third party would not consider that the adjudicator was biased because the issue of clause 27 was not dealt with in the initial legal advice. Further, the adjudicator did not deal with clause 27 in his decision and therefore there was no basis upon which any bias could be founded. Whitefriars had not made any submissions on clause 27 during the adjudication and so could not raise the issue now.

The allegation that the note of the telephone conversation between the adjudicator and legal advisors for AMEC was incomplete could not be supported as there was no evidence. The Court of Appeal stated that telephone calls should be avoided, but the telephone call in this case did not present a problem.

Of particular interest is the decision in respect of the application of natural justice to the adjudicator’s conclusion that he did or did not have jurisdiction. As the adjudicator did not have jurisdiction to rule on his own jurisdiction, natural justice was not applicable. This was because the court was to decide whether the adjudicator had jurisdiction, and the conclusion reached by the adjudicator could not affect a parties rights. In this respect Lord Justice Dyson at paragraph 41 stated:

“A more fundamental question was raised as to whether adjudicators are in any event obliged to give parties the opportunity to make representations in relation to questions of jurisdiction. …The reason for the common law right to prior notice and an effective opportunity to make representations is to protect parties from the risk of decisions being reached unfairly. But it is only directed at decision which can affect parties’ rights. Procedural fairness does not require that parties should have their rights to make representations in relation to decisions which do not affect their rights, still less in relation to “decisions” which are nullities and which cannot affect their rights. Since the “decision” of an adjudicator as to his jurisdiction is of no legal effect and cannot affect the rights of the parties, it is difficult to see the logical justification for a rule of law that an adjudicator can only make a “decision” after giving the parties an opportunity to make representations”.

Nonetheless Lord Justice Dyson warned that it will be appropriate for an adjudicator to allow both parties to make representations before coming to a conclusion about his or her jurisdiction. Finally, the Court of Appeal considered whether the threat of a claim against the adjudicator for continuing with the adjudication when perhaps the adjudicator did not have jurisdiction might support an allegation of bias. Lord Justice Dyson referred to paragraph 26 of the Scheme stating that the adjudicator was immune from a claim, save in respect of bad faith. He therefore concluded that a fair-minded third party observer would not consider that a threat of litigation against the adjudicator would make the adjudicator bias because the adjudicator enjoyed immunity from litigation save in respect of certain circumstances.