ON APPEAL FROM THE HIGH COURT OF JUSTICE
BEFORE MR JUSTICE AKENHEAD AND HIS HONOUR JUDGE WAKSMAN QC SITTING AS A DEPUTY HIGH COURT JUDGE
HT-11-190 & 194
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE STANLEY BURNTON
LORD JUSTICE JACKSON
| LANES GROUP PLC
||Appellant In First Two Appeals. Respondent In Third Appeal
|- and -
|GALLIFORD TRY INFRASTRUCTURE LIMITED T/A GALLIFORD TRY RAIL
||Respondent In First Two Appeals And Appellant In Third Appeal.
Mr. Richard Wilmot-Smith QC, Ms. Karen Gough and Ms. Rachael O'Hagan (instructed by Barton Legal) for the Respondent
Hearing dates : Thursday 8th December 2011
Crown Copyright ©
Lord Justice Jackson :
Part 1. Introduction,
Part 2. The Facts,
Part 3. The Proceedings in the Technology and Construction Court,
Part 4. The Appeals to the Court of Appeal,
Part 5. First Issue. Did Mr Atkinson have Jurisdiction as Adjudicator?
Part 6. Second Issue. Is the Adjudicator's Decision Tainted by Apparent Bias?
Part 7. Conclusion.
"108 - (1) A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this section.
For this purpose "dispute" includes any difference.
(2) The contract shall –
(a) enable a party to give notice at any time of his intention to refer a dispute to adjudication;
(b) provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within 7 days of such notice;
(c) require the adjudicator to reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred;
(d) allow the adjudicator to extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred;
(e) impose a duty on the adjudicator to act impartially; and
(f) enable the adjudicator to take the initiative in ascertaining the facts and the law.
(3) The contract shall provide that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.
The parties may agree to accept the decision of the adjudicator as finally determining the dispute.
(5) If the contract does not comply with the requirements of subsections (1) to (4), the adjudication provisions of the Scheme for Construction Contracts apply."
"Notice of Intention to seek Adjudication
(1) Any party to a construction contract (the "referring party") may give written notice (the "notice of adjudication") of his intention to refer any dispute arising under the contract to adjudication.
(2) The notice of adjudication shall be given to every other party to the contract.
(3) The notice of adjudication shall set out briefly –
(a) the nature and a brief description of the dispute and of the parties involved,
(b) details of where and when the dispute has arisen,
(c) the nature of the redress which is sought, and
(d) the names and addresses of the parties to the contract (including, where appropriate, the addresses which the parties have specified for the giving of notices)."
(1) Where an adjudicator has been selected in accordance with paragraphs 2, 5 or 6, the referring party shall not later than seven days from the date of the notice of adjudication, refer the dispute in writing (the "referral notice") to the adjudicator.
(2) A referral notice shall be accompanied by copies of, or relevant extracts from, the construction contract and such other documents as the referring party intends to rely upon.
(3) The referring party shall, at the same time as he sends to the adjudicator the documents referred to in paragraphs (1) and (2), send copies of those documents to every other party to the dispute."
(1) The adjudicator shall reach his decision not later than –
(a) twenty eight days after the date of referral notice mentioned in paragraph 7(1), or
(b) forty two days after the date of the referral notice if the referring party so consents, or
(c) such period exceeding twenty eight days after the referral notice as the parties to the dispute may, after the giving of that notice, agree.
(2) Where the adjudicator fails, for any reason, to reach his decision in accordance with paragraph (1)
(a) any of the parties to the dispute may serve a fresh notice under paragraph 1 and shall request an adjudicator to act in accordance with paragraphs 2 to 7; and
(b) if requested by the new adjudicator and insofar as it is reasonably practicable, the parties shall supply him with copies of all documents which they had made available to the previous adjudicator.
(3) As soon as possible after he has reached a decision, the adjudicator shall deliver a copy of that decision to each of the parties to the contract."
"Preliminary Views and Findings of Fact
The date for the Response specified in the ICE Adjudication Procedure has passed and Lanes has made no submissions at all on the substantive issues. There has been no agreement to a revised timetable and indeed no response at all to my suggested timetable yesterday.
Accordingly, in order to assist me in my examination of the issues referred to me, in my ascertainment of the facts and the law and in order to allow the Parties the opportunity to make further submissions on the issues I enclose Preliminary Views and Findings of Fact on some of the initial issues raised in the Referral.
The Preliminary Views and Findings of Fact are a step in making my Decision and I am not bound by them nor do I commit myself to communicate nor issue amendments or further Preliminary Views and Findings of Fact.
I direct the Parties to make any comments or submissions on the Preliminary Views and Findings of Fact by 17:00 hrs on Thursday 21st April 2011. I direct the Parties to refer to or submit any evidence, arguments, authorities etc that they consider relevant."
"In both cases the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities."
"The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
"The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed … that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant."
The statement "I find", "I find and hold" and "Decision" and other similar statements are not and not intended to be decisions of the adjudicator but preliminary views and findings of fact preparatory to the decision.
The preliminary views and findings are a step in making the decision and I am not bound by them.
I do not commit myself to communicate nor issue amendments or further Preliminary Views and Findings of Fact."
Lord Justice Stanley Burnton:
Lord Justice Richards: