January’s contract clinic question comes from a project director worried that an adjudicator assigned to her firm’s case is biased and unpredictable. Paul Woodley weighs up the options
The question
We’ve reached a dispute and have heard that the adjudicator assigned to make a decision on the case is notoriously biased and unpredictable – is there anything we can do to avoid them being allowed to continue on our case?
The answer
This is not uncommon, however in many instances, the fear is based on perceived issues, anecdotal evidence or rumours – all of which can be dangerous.
Let’s unpack the situation and potential options available, along with practical steps you can take to give yourself the best chance of fairness.
You are not alone. Construction adjudication is designed to be quick and adjudicators must act impartially. This, however, does not stop stories of bias circulating among colleagues and professional circles. Many of the rumours are exaggerated, but some are not, and since adjudication can determine large interim payments, your anxiety is understandable.
Can you stop an adjudicator if you don’t like their reputation?
In short: no, not usually.
The alternative dispute resolution system is designed intentionally to keep things moving. Courts and commentators regularly remind us that it is meant to be rough and ready, and fast paced.
What this means in practice is that you rarely have an opportunity to ‘switch out’ adjudicators simply because you have heard worrying things about their past appointments.
That being said, there are situations where concerns regarding fairness would become something more concrete.
When your concerns actually matter
There are two pathways where your concerns can matter; the first being jurisdiction (think power to act) and then second being natural justice (think impartiality).
If the adjudicator was not appointed correctly, the notice has not been issued properly, or the dispute is not within the scope of The Construction Act, you could reserve your position. Formal legal advice would be prudent at this point. It is almost always better to do this early if you genuinely have partiality concerns.
Some of the triggers you could look for include:
- The wrong appointing body is used (check the contract).
- The dispute has not been ‘crystalised’. This is when one party has raised an issue, and the other party has either rejected it or failed to respond within a reasonable timeframe.
- The adjudicator has been appointed under the wrong contract clause.
- Multiple disputes packed into one referral.
You may have a foothold if you spot one of these.
Regarding ‘natural justice’, your worries, or the rumours you have heard need to tie to specific behaviours to become relevant. For example, if an adjudicator is not allowing you to respond properly, relying on without prejudice or privileged information, or even providing very unclear reasoning such that the losing party is unable to follow the logic. If you spot any of these, again, you may have a foothold.
So, what can you do now?
Here are some practical ideas for project teams almost like a clam checklist for when you hear a name that drops your stomach.
- Reserve your rights. This sounds dramatic, but it is routine. Take legal advice on how to write to the other party and state you are taking part without prejudice to any jurisdictional or fairness concerns.
- Double check the basics. Was the adjudicator appointed using the correct body? Was the contract clause followed properly? Has the dispute actually crystalised? These should be factual, procedural considerations, not personal ones.
- Watch out for privileged material. Ever since AZ v BY [2023], this has become a significant issue. If the other side sneaks it in, log it carefully.
- Keep good records. Ensure you record any procedural unevenness, for example if you were refused extensions of time, but the other side was not, key defences have not been acknowledged, or you were denied a chance to respond to late evidence. This turns the focus from ‘I don’t like this adjudicator’ to ‘here is what actually happened’.
- Prepare early for enforcement. Realistically speaking, your strongest moment to raise a fairness issue is likely at the enforcement stage, after the decision, and once your concerns turn out to have been valid.
The uncomfortable truth
You rarely get to remove a rumoured ‘biased’ adjudicator at the outset of the process.
The reassuring part, however, is that if anything material does happen during the process that raises fair concerns, the law does provide routes to challenge. Consider acting early, reserving your rights, watch the process carefully and document everything.
Adjudication is fast, but fairness still matters, and you are not powerless in the face of genuine bias.
Paul Woodley is a consultant at DeSimone.
