Lanes Group plc –v- Galliford Try Infrastructure [2011] BLR 553 TCC
Facts
Galliford Try ('GTI') had a main contract for construction works at the railway maintenance depot, Inverness; Lanes had a sub-contract. Each prepared adjudication proceedings against the other. The adjudicator was appointed for both adjudications by the ICE. The Adjudicator produced a draft document of 35 pages setting out his “preliminary views” on various matters of fact and law, expressed as if it was a final decision. He invited submissions from the parties. Subsequently he went on to produce a Decision which awarded £1.3m against Lanes in favour of GTI. Lanes refused to pay on the basis that the adjudicator had displayed bias. Lanes took the initiative by bringing proceedings in the TCC for a declaration that the adjudication was not effective. GTI made a cross-application to the TCC for the enforcement of the Decision.
HELD
That the Decision would not be enforced, because the Adjudicator’s actions had created a real possibility of bias.
The judge said the test was that "if a fair minded and informed observer, having considered all the circumstances which have a bearing upon the suggestion that the Decision maker is biased would conclude that there was a real possibility that he is biased, then that was sufficient for the Decision not to be enforced.”
The judge went on to remark that the preliminary views document read like a judgment, and looked on its face as though it had been prepared as a draft judgment. This was unfortunate where the other side in the adjudication had not yet made any submissions at all. It was also unfortunate that the final Decision followed the same findings of liability as those contained in the preliminary views document. The final Decision read as though the author had made up his mind already notwithstanding his remarks to the contrary when he produced the preliminary views document. These facts were enough to give an objective observer the appearance of bias and to make the Decision unsafe and unenforceable.