Judge Peter Bowsher refused to enforce the adjudicator’s award for £55 552 after it emerged that he had been in contact with one of the parties, and had failed to inform the other one involved.
Dominic Helps, partner in solicitor Shadbolt & Co, said the decision could lead to a flood of appeals on the same grounds. If this occurred, it would threaten the decision-making role of the adjudicator, he said.
The adjudication was brought by Discain Project Services against Opecprine Development. The judge reached his decision after being told that the adjudicator, Roy Sutcliffe, had had two telephone conversations with Discain and had received a fax from the firm. He then proceeded to make a decision without telling Opecprine of these contacts.
Helps, whose firm acted for Discain, said: “We are extremely surprised and disappointed by the outcome of this case.
“Small discussions are taking place all the time in adjudications. For many people, it was the strength of adjudication that an adjudicator could act as he considered appropriate.
“If you are going to start having court interference, it will make it almost impossible for an adjudicator to conduct himself as parliament intended.”
Tony Bingham, a Building legal columnist and arbitrator, said the decision anticipated the incorporation of the European Convention on Human Rights into English law on 2 October.
He said the judge’s decision was informed by article 6 of the convention, which provides that all parties have access to a fair trial.
Bingham said: “Bowsher is saying that he is ruling on the law of the land, but at the same time he is adopting the same principles as the Human Rights Act. He is batting from both ends of the wicket.”
In his ruling, Judge Bowsher gave some principles for deciding when an adjudicator’s conduct breached the rules of natural justice.
He said: “I wish to stress that I am not criticising the adjudicator. I do understand that adjudicators have great difficulty in operating this statutory scheme.
“It would be quite wrong for parties to search around for breaches of the rules of natural justice. It is a question of fact and degree in each case, and in this case the adjudicator overstretched the rules.”
The dispute between the parties was over non-payment for some steel balconies installed on a building in Harrow.
