UK: Green Light To Adjudicator Shopping And Draft Decisions

Last Updated: 5 January 2012
Article by Julian Bailey

In a judgment handed down yesterday in Lanes Group v Galliford Try  the English Court of Appeal held that:

  • A referring party in an adjudication may engage in "adjudicator shopping"; and
  • Adjudicators may issue draft decisions to the parties before issuing final decisions.

Adjudicator Shopping

Adjudicator shopping can take a number of forms, the most overt of which is a construction contract naming an adjudicator.  The more common form occurs where a contract names an adjudicator nominating authority (e.g. the RICS) and a party applies to the nominating authority for the nomination of an adjudicator.  If the nominated adjudicator is not (for whatever reason) regarded as suitable or favourable to the referring party, the referring party will then commence another adjudication (and abandon the nascent one), in the hope that someone who is perceived as a favourable adjudicator will be nominated.  In the Lanes case the referring party applied to the agreed adjudicator nominating authority – the ICE – for the appointment of an adjudicator.  Adjudicator X was initially nominated by the ICE, but following that nomination the referring party intentionally abandoned its initial reference (because it did not want adjudicator X) and issued a second notice of adjudication and application for appointment to the ICE.  The second time round the ICE nominated adjudicator Y.

Opinions differ on whether adjudicator shopping is desirable and whether it should be allowed to occur.  The recent amendments to the Construction Act did nothing to outlaw adjudicator shopping and in the Lanes case the Court of Appeal held that there was nothing in the Construction Act to prevent a party from shopping for the "right" adjudicator.  Although the court said that shopping for adjudicators is "never attractive", it upheld the right to engage in the practice. 

Adjudicator shopping will usually come at a price.  First there is the fee charged by the nominating body (up to a few hundred pounds, although not all charge fees).  It is unlikely, though, that the responding party would recover his wasted costs of an adjudication aborted before the referral is given.  Second, tactically there is the matter of how the adjudicator who is finally appointed perceives and reacts to what has happened (e.g. in treating the case of the referring party who shops for an adjudicator with a degree of suspicion).  Third, not all nominating bodies can be expected to nominate a different adjudicator when asked.

As a final point, although referring parties may engage in adjudicator shopping, respondents may also do the same – although it is potentially complicated and expensive to do so.  If a respondent believes that the person nominated as adjudicator is likely to be unfavourable to it, the respondent can (if it acts quickly enough) commence its own adjudication in respect of the very same dispute referred to adjudication and seek the nomination of a different adjudicator for that second, parallel adjudication.  This may well lead to two conflicting adjudicators' decisions on the same dispute and issues over which (if any) decision is enforceable.  It may also be an expensive way of obtaining the "right" adjudicator, because it involves participating in two adjudications.  Nevertheless, adopting such a strategy is permitted.

Draft Decisions

Should an adjudicator be able to issue to the parties for comment a draft or preliminary decision, with a final decision then being issued once the parties have given their comments?  The potential problem with an adjudicator doing this is that the perception could be taken that the draft or preliminary decision really contains the adjudicator's actual decision, from which the adjudicator is unlikely to deviate even if the parties are given the chance to comment on it.  Adjudicators, like arbitrators and judges, are required to afford "natural justice" to the parties, and this involves not reaching a decision until the parties' respective submissions have been made.

In the Lanes case, the adjudicator issued to the parties a "preliminary view" document, that set out his preliminary views on the dispute before him.  The "preliminary view" stated in terms that the opinions expressed there were not intended to represent an actual "decision", although in fact there was not a great deal of difference between the adjudicator's "preliminary view" and his actual decision.  The argument, which succeeded at first instance, was that by setting out his "preliminary" conclusions, the adjudicator in fact disclosed what his decision would be on the particular dispute, even though he stated expressly that he had not made up his mind.  The Court of Appeal disagreed with the lower judge and said that the adjudicator was entitled to do what he had done, namely issue a "preliminary view" on the dispute, whilst hearing further submissions from the parties.  The court held:

"There is nothing objectionable in a judge [or adjudicator] setting out his or her provisional view  at an early stage of proceedings, so that the parties have an opportunity to correct any errors in the  judge's  thinking or to concentrate on matters which appear to be influencing the judge. Of  course, it is unacceptable if the judge reaches a final decision before he is in possession of all  relevant evidence and arguments which the parties wish to put before him. There is, however, a  clear distinction between (a) reaching a final decision prematurely and (b) reaching a provisional  view which is disclosed for the assistance of the parties".

Prior to the first instance decision it was not unheard of for adjudicators to issue "draft" or "preliminary" decisions for comment.  The practice (to the extent it exists) will almost certainly continue in light of the Court of Appeal's decision in the Lanes case.  Adjudicators will need to take care, however, to make it clear to the parties that their decision is truly "draft" or "provisional", and that they will only reach a "final" decision once they have considered the full submissions of each party.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 22/12/2011.

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