The referral included a without prejudice offer to settle from ZBI that had been rejected by Specialist. ZBI had also allowed a without prejudice extension of time in respect of part of the delay. Any adjudicator's decision recognised that it was well established that the parties in dispute often discussed matters on a without prejudice basis. He did not believe that the knowledge of the without prejudice offer affected his impartiality and went on to make a decision in Specialist's favour.
HHJ Grenfell considered the recent Court of Appeal decision in Re Medicaments and related classes of goods (No 2)  1 WLR 700, together with the well known authority of R vs Gough  AC 646. Further, it was accepted in Disclaim Project Services Limited vs Opec Prime Developments Limited  BLR 285 that the rules of natural justice applied within the limitations imposed by parliament to adjudication. HHJ Grenfell concluded that the adjudicator's approach indicated no apparent bias and he had properly brushed aside the without prejudice material and ignored it when reaching his decision. He concluded that the defence had no real prospect of success and therefore enforced the decision.
*Full case details
Specialist Ceiling Services Northern Limited vs ZVI Construction UK Limited, 27th February 2004, TCC, Leeds, HHJ SP Grenfell
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The court will accept that an adjudicator has ignored without prejudice material put to him provided that the adjudicator is not bias. The test (established in R vs Gough) is that the court must first ascertain all the circumstances that might have a bearing on the suggestion that the judge or adjudicator was biased. The court must then ask whether in those circumstances a fair minded and informed observer would conclude that there was a real possibility of a real danger that the judge or adjudicator was biased.