A couple of recent cases have shown that representations made in the appointment process can result in the adjudicator lacking jurisdiction – so be careful about trying to influence the choice of adjudicator.
Adjudicators come in a range of shapes and sizes and it’s not unusual for a party bringing an adjudication to have a preference as to who is or isn’t nominated.
A tactic often deployed is to seek to avoid the appointment of particular adjudicators by making representations to the adjudication nominating body – either on the nomination form or in a covering letter.
This correspondence is not always automatically provided to the other side.
A couple of recent cases have decided that representations made in the appointment process can result in the adjudicator lacking jurisdiction.
In Eurocom Ltd v Siemens plc, the court decided that Eurocom’s representatives had falsely misrepresented to the nominating body (RICS) that certain individuals would have a conflict of interest if appointed as adjudicators.
There was no such conflict and it was simply a ruse to avoid the appointment of particular adjudicators.
Following this decision, it was still generally felt that the practice of stating on your nomination form which individuals you did not want appointed would be permissible, provided that this was not represented as a conflict when there was none.
However, a later case has now made this position uncertain, with the inherent risk that any party adopting it could end up with an unenforceable decision – or worse.
Stating a preference
In CSK Electrical Contractors Ltd v Kingwood Electrical Services Ltd (2015), Kingwood sought to defend enforcement proceedings on a number of grounds, including alleging that the adjudicator’s appointment was invalid.
Relying upon Eurocom, Kingwood alleged that the inclusion in the covering letter to the application to CEDR by CSK of a statement that “it is preferred that any of the adjudicators in the attached list are not appointed” amounted to a Eurocom situation, which ought to invalidate the appointments (thereby rendering the decisions unenforceable).
“What is clear is that the safest course of action may be not to state which adjudicators you would prefer not to be appointed”
In fact, no list of preferred adjudicators was attached to the letter and CSK explained that this sentence was simply included in error.
On the basis that no “preferred” adjudicators were put forward, the court declined to decide whether enclosing a list of preferences would amount to a Eurocom misrepresentation and/or invalidate an appointment.
However, the court added that “there may be circumstances in which a stated preference could amount to a misrepresentation”, although the court recognised “that this would never be very straightforward”.
No indication was given as to what these “circumstances” may be and it is difficult to see how stating a preference would amount to a misrepresentation.
What is clear is that the adjudication process continues to be closely scrutinised by the court and the safest course of action may be not to state which adjudicators you would prefer not to be appointed.
It is likely that there will be a growing number of requests for copies of the applications to nominating bodies by responding parties – and perhaps further litigation in respect of these issues, as parties continue to seek novel ways of resisting enforcement.
Adrian Bell is a partner and Ruth Wilkinson is an associate at CMS Cameron McKenna