Makers UK Ltd v London Borough of Camden

In adjudication proceedings, a party may suggest a suitable adjudicator or disclose relevant technical or legal requirements to the nominating institution, unless the contract provides otherwise. A term preventing such representations is not implied merely because it might be reasonable. The ordinary requirements of necessity, obviousness, clarity and consistency with the express contract apply.

Apparent bias is assessed objectively by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Limited contact concerning availability or conflicts, and later contact to provide evidence to the court, does not itself establish apparent bias. Valid adjudicators’ decisions should be enforced promptly, with intervention reserved for plain cases.

Makers, a building contractor, referred a dispute with Camden concerning the termination of a building contract to adjudication. The contract provided for appointment by the Royal Institute of British Architects where the parties had not agreed an adjudicator.

Makers’ solicitor contacted Mr Harris to check his availability before asking the RIBA to nominate him and suggested his appointment because of his legal qualifications. Camden challenged the appointment, arguing that an implied contractual term prohibited unilateral representations to the nominator. It also alleged apparent bias arising from the pre-appointment telephone call and later communications.

The issues were whether the appointment was invalid, whether the adjudicator’s decision was unenforceable for apparent bias, and whether Makers could enforce payment of the adjudicator’s fees.

Judgment for Makers. The adjudicator’s appointment was valid, his decision was enforceable, and Camden was liable for the adjudicator’s fees.

1. Implied term. The ordinary principles governing implied terms applied. The proposed term, preventing a party seeking nomination from making unilateral representations about an adjudicator’s attributes or identity, was not necessary to give the contract business efficacy, was not so obvious as to go without saying, and was not required by clause 9A.2. The RIBA was an independent nominating institution which could accept or reject such representations. Suggestions about technical expertise or possible conflicts could be sensible and practical. The contract contained no express prohibition. The court also doubted that a breach of the proposed term, absent impropriety, would necessarily invalidate an appointment.
2. Apparent bias. The applicable test was whether a fair-minded and informed observer, considering all relevant circumstances, would conclude that there was a real possibility of bias. The limited telephone contact was properly understood as checking availability. Makers were not required to consult Camden before applying to the RIBA, and the RIBA remained the body which selected the adjudicator. The later contact between Makers’ solicitors and Mr Harris, including his letter to the court, did not create a real possibility of bias.
3. Enforcement. The statutory adjudication scheme required prompt enforcement of an adjudicator’s decision. Courts should intervene only in rare or plain cases involving a jurisdictional error or obviously unfair conduct. The objections raised did not justify withholding summary enforcement.
4. The court nevertheless observed that unilateral contacts with adjudicators should be limited, preferably made in writing, and copied to all parties. Nominating institutions should consider whether their rules should regulate suggestions concerning the identity or attributes of nominees.

First-instance decision. No prior appellate history is stated in the judgment.