Lanes Group Plc v Galliford Try Infrastructure Ltd

A party may restart an adjudication where an earlier adjudication became a nullity because no referral was made and no decision was taken. Neither the adjudication procedure nor the statutory scheme implies an absolute or qualified bar, although an injunction may be available in an appropriate case to restrain abuse of the process.

Whether a later challenge is an abuse of process requires a broad, merits-based assessment of all the circumstances. Apparent bias is assessed by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A judgment-like preliminary document issued before the opposing party had made its substantive submissions may satisfy that test.

GTI obtained an adjudicator’s decision requiring Lanes to pay approximately £1.36 million. The decision followed GTI’s commencement of an adjudication before Mr Klein and its failure to serve the referral after objecting to his apparent impartiality. GTI then obtained a fresh appointment, and Mr Atkinson issued a decision in its favour.

Lanes brought Part 8 proceedings challenging the decision. It argued that GTI was barred from starting again and that Mr Atkinson was apparently biased because he had issued a detailed document headed Preliminary Views and Findings of Fact before receiving Lanes’s substantive response. GTI argued that the first point was an abuse of process because it could have been raised in an earlier unsuccessful injunction application.

1. No bar on restarting. The adjudication procedure did not expressly prevent a party from commencing a further adjudication where an earlier referral had produced no decision. Paragraph 6.7 addressed only issues already decided, and paragraph 9(2) of the Scheme likewise applied where a decision had been taken. The procedure was substantially a complete code, so a very powerful reason would be needed to add a restriction by implication.
2. Under paragraph 4.2, the adjudicator’s jurisdiction arose when the referral documents were received. As GTI never served a referral on Mr Klein, the proposed adjudication before him was a nullity. The absence of a referral therefore did not exhaust GTI’s contractual right to refer the dispute again. The court rejected both an absolute bar and a proposed qualified bar aimed at preventing forum-shopping.
3. Abuse of process. The question was governed by the broad, merits-based approach in Johnson v Gore Wood [2002] 2 AC 1. Although Lanes could have raised the point in the injunction proceedings, the omission resulted from forensic error rather than tactical manipulation. The later challenge was not oppressive or abusive.
4. Apparent bias. The test stated in Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418 was applied critically. Mr Atkinson had issued a lengthy, judgment-like document after hearing only GTI’s case. Its language, structure and detailed findings conveyed that liability had already been determined, despite qualifications describing the views as provisional. A fair-minded and informed observer would conclude that there was a real possibility of bias.
5. The court therefore refused enforcement of Mr Atkinson’s decision on the ground of apparent bias.

This was a first-instance decision of the Technology and Construction Court. An earlier injunction application concerning continuation of the adjudication had been refused by Akenhead J in Lanes Group Plc v Galliford Try Infrastructure Ltd [2011] EWHC 1035. The present court refused enforcement because of apparent bias.