But then along came Judge Bowsher. Last August he declined to enforce a decision in Discain Project Services vs Opecprime because he thought that there had been serious breaches of natural justice.
As previously discussed in these pages, the case concerned a series of phone calls between the adjudicator and Discain during which issues relating to the case were raised. The adjudicator had been uncomfortable about all this, but once conversations had started they were difficult to stop. Opecprime got wind of the calls and was concerned that the adjudicator might have been unfairly influenced.
This judgment started all sorts of wild ideas that adjudicators should not use the telephone – which could be a little inconvenient. It was also taken to mean that the adjudicator in question had behaved improperly – hardly the best publicity for an adjudicator who would like to continue being one.
Judge Bowsher has now had a chance to review the decision in a full trial, and has had the benefit of the adjudicator's personal evidence.
He did not change his mind. After a much fuller account of what had happened than had been possible last August, the judge decided again that the facts would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger of bias.
A breach of natural justice must be ‘substantial and relevant’ before it will affect the enforceability of a decision
Although the conclusion was the same, the judgment is quite different. First of all, the adjudicator has been cleared. There was no actual bias, but only an appearance of bias. Most of the activity that had given rise to that appearance had been initiated by Discain's representative. The adjudicator had just been too polite to hang up.
Secondly, instead of raising fears that adjudicators will always be subject to attacks on the basis of perceived bias or a breach of natural justice, Judge Bowsher has provided some useful tips:
- Telephone calls of a purely administrative nature are not a problem, but it may be advisable for them to be made by a clerk or secretary.
- If "relevant information" is received in a phone call, a detailed note should be taken and communicated to the other party – with caution.
- The adjudicator may need to make calls to third parties in order to act "inquisitorially", as he or she is permitted to do, but again, information obtained must be passed to the parties.
This second judgment has been met with the same panic as the first. In last week's Building, Dominic Helps said that the decision will make adjudicating more difficult, and I know this week Tony Bingham will be taking issue with my assessment.
This is all rather unfair on Judge Bowsher. Having apparently lifted the lid on natural justice arguments in his first decision, he has done his best to screw it back down again. He quoted with enthusiastic approval the comments of Judge Lloyd in a judgment in February: "It is accepted that the adjudicator has to conduct the proceedings in accordance with the rules of natural justice or as fairly as the limitations imposed by parliament permit." In fact, he was so enthusiastic that he quoted most of the passage twice and the last part three times: a breach of natural justice "must be substantial and relevant" before it will affect the enforceability of the adjudicator's decision.
John Redmond is head of construction at solicitor Osborne Clarke OWA in Bristol.