Who says students are unable to bring a sound practical understanding to the profession? One of them has won out in our legal quiz run by QS and dispute experts at Blake Newport. Co-founder David Blake presents the definitive view on an informal approach to adjudication

I have looked through the answers provided by the readers of QS News and I am pleased to say that several contestants got the main issue regarding the risk that the adjudicator may become technically biased and hence provide an unenforceable decision absolutely correct. Therefore my decision on choosing the winning entry has been very difficult, almost as stretching as conducting a real adjudication! However, the winner of the competition is David Drake, who narrowly squeezed home by citing the actual case I had in mind when I drafted the question. His answer is detailed below.

The winning answer

In dealing with the request for assistance the adjudicator should be very cautious.

This is because any decision reached outside the parameters of the adjudication, i.e. mediation, can lead to the adjudicator being put into a position of "hearing information and forming opinions about individuals which would not have occurred in his role as adjudicator". *

This raises the question against the adjudicator of their impartiality and potentially not hearing all the facts of the dispute.

If applicable, any subsequent continuation of adjudication through the failure of mediation has the potential impact of directing the adjudicators understanding, perception and potentially their decision outside the normal parameters of adjudication and of the scheme.

Bias on this basis can only be established if "the circumstances would lead a fair minded and informed observer to conclude that there was a real possibility or a real danger" which can only be decided at litigation.

Overall the adjudicator should not be party to the mediation on the balance of risk. He should allow the parties to conclude their dispute between themselves if possible. If not, return to their positive adjudication process.

* Case cited and comments taken from: Glencot Development & Design vs Ben Barrett & Son (Contractors) [2001]

David Drake, Trainee QS, Student at the University of Central Lancashire

David Blake would also like to congratulate Crispin Cockman for providing not only a ‘near miss' answer but also his "completeness and humour".

Source

QS News