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“Mccredie hello and welcome to this ndiscussion on adjudicator nomination tactics my name is fionnuala fionnuala mccredie qc. I m a nbarrister practising from keating chambers specialising in construction and nlaw paul bury. And my name is paul bury. I m nalso a barrister at keating chambers practising in construction law and procurement as well nfionnuala mccredie.
Very often parties want to obtain a specific adjudicator or to avoid. Nan adjudicator or a list of adjudicators. There have been a number of practices. Which nhave arisen and which have been examined by the court in recent months.
Nit s really important because the dangers of overstepping. The mark are that you obtain nan adjudicator s decision..
Which is in your favour and you very much want to obtain nthe benefits of but are unable to enforce that decision because the courts disapprove nof. The tactics. Which you have employed and in the worst cases. The responding party may nbe able to take proceedings to recover the entirety of the costs of the adjudication npaul bury the two recent cases and most interesting ones that we ll discuss today are firstly neurocom v.
Siemens which you ve already mentioned which is a case about an alleged fraudulent nmisrepresentation by a representative of the nominating party to conflict out adjudicators nthat they did not want and that has been of interest to the construction industry nand in a recent judgment. It has been described as having shaken public confidence in the nadjudication system. Even more recently in the last two weeks. Nthere s been a further case called paice v.
Harding. Which we ll come to discuss nwhere..
The court has found that there that an adjudication decision will not be enforced nfor apparent bias on the basis of a nominating party phoning the adjudicator s representative n in fact his spouse prior to launching the adjudication nfionnuala. Mccredie. Telephone conversations are always difficult unless they re recorded nbecause. There is always going to be a concern and it s going to raise a suspicion on part nof.
The other side as to what took place so written communication is always better ncan. We talk about how far the courts will allow parties to go in naming the specific ncharacteristics of an adjudicator paul bury yeah. So the reason that this comes nabout as an issue is that often in the nomination form the standard form that the nominating nbodies produce so rics riba produce they will give parties an opportunity to name specific ncharacteristics or professional qualifications that they seek in the adjudicator that they nwant to resolve the dispute and often that s very sensible because sometimes the dispute nwill be on a specific. Very technical issue.
But parties as we see from the cases have ntaken that rather further and have gone as far as naming specific individuals or naming nonly. One individual in those boxes..
And what that s given rise to are two grounds of nchallenges fionnuala mccredie. The responding party took nvery strong objection to that on the basis that that was a fraudulent misrepresentation nwhich had the effect of fettering. The discretion of the adjudicator nominating body. Because nit narrowed the pool of adjudicators improperly because people were named as having a conflict nof interest when they did not in fact have a conflict of interest nthe court held in that case that there was a prima facie.
Very strong case of fraudulent nmisrepresentation. An application was made for a nomination nthe party had concerns about the nominated adjudicator because they had fallen out with nhim in a previous case. The representatives had fallen out with him and they d accused neach. Other of quite serious professional misconduct at first instance.
The court held that that nwas not appropriate and they wouldn t enforce but in the court of appeal. The court of appeal nsaid there was no such thing as an abuse of process because that was how it had been nargued as being an abuse of process in adjudication proceedings..
Npaul bury. Best practice is to copy the other side into those communications. That would ndo two things one it should set them at ease that everything is upfront and everything nis transparent fionnuala mccredie. I think that the top tip nif you re a responding party is always insist on seeing the form and all correspondence nand.
If you find something that you are really concerned about be prepared to make an application nto. The court. If you will feel comfortable at explaining nwhat you ve done and you think that will be a comfortable and pleasant process. Then nit s probably alright if you will feel.
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