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The case of Amec vs Whitefriars, discussed in the article above, was first covered in James Bessey鈥檚 article 鈥淣ot You Again鈥� (8 April, page 52). As you will now know, Whitefriars, which was represented by the firm of Kingsley Napley, sought to resist enforcement on, among other grounds, a claim of apparent bias and breach of natural justice.

The claim of bias was formulated on three fronts. The first being that the adjudicator had previously given a decision in an adjudication between the parties on substantially the same issues.

The second ground related to the adjudicator relying on legal advice he had received during the first adjudication while considering his decision in the second adjudication.

The third and final ground was based on a telephone conversation that the adjudicator had with Amec鈥檚 solicitor. The adjudicator described it as being administrative in nature, although the court took the view that 鈥渢he conversation went beyond what appears to have been the original inquiry as to where the papers were to be sent鈥�. However the court stated that taken on its own the 鈥渃onversation might not have warranted the conclusion of a real possibility of bias鈥�.

I know something of the background to this case as I advised the adjudicator, Michael Biscoe, on jurisdictional and substantive issues during the course of both adjudications.

It was a surprise to both Mr Biscoe and myself when Judge Toulmin held that although none of the grounds amounted to bias on their own, taken together there was 鈥渁 real possibility that the adjudicator was biased鈥� and declined to enforce his decision.

Last month, Amec took the case to the Court of Appeal and succeeded in getting it overturned. Lord Dyson found that 鈥渢he fact that the first decision was a nullity did not make Mr Biscoe any more or less likely to approach the second adjudication with a closed mind鈥� and that as Whitefriars 鈥渄id not advance any alternative argument 鈥� it was inevitable that Mr Biscoe would arrive at the same conclusion as before鈥�.

With regard to the failure to disclose legal advice, Lord Dyson found that 鈥渢here was no breach of the rules of natural justice鈥� given that Whitefriars had an 鈥渆ffective opportunity to make representations before [the] decision [was] made鈥�. Indeed Lord Dyson took the view that adjudicators are not necessarily obliged to give parties the opportunity to make representations in relation to questions of jurisdiction.

So far as the telephone conversation was concerned, Lord Dyson saw 鈥渘othing in the circumstances of this conversation 鈥� which would lead the fair-minded and informed observer to conclude that what was said would give rise to a real possibility of bias鈥�.

So Amec won their appeal and Mr Biscoe was exonerated. But what is more troubling are the tactics that are employed by those representing parties to adjudications.

In this case, a Mr Janney of Kingsley Napley wrote to Mr Biscoe threatening him with liability for some of Whitefriars鈥� costs. Mr Janney helpfully went into specifics, and informed

Mr Biscoe that at the date of his letter Whitefriars had incurred about 拢100,000 in legal costs in contesting the first adjudication and a further 拢28,000 in defending the proceedings issued by Amec to enforce the decision. If Whitefriars was unable to recover those costs from Amec, Mr Janney said his client intended recovering the costs from Mr Biscoe 鈥渁s damages for proceeding with an adjudication wrongly鈥�.

While Lord Dyson remarked that such a claim would not succeed in the absence of bad faith (which was not alleged) as legislation protects an adjudicator from such liability, Lord Dyson considered that the fair鈥搈inded and informed observer 鈥渨ould interpret this letter as showing no more than that Mr Biscoe was showing a resolute refusal to succumb to some rather crude bullying鈥�.

It would of course be a great shame if such bullying tactics were ever to work, particularly if those who engage in them are allowed to use them as evidence of the possibility of bias. To use one鈥檚 own bullying to create a claim of apparent bias would hopelessly undermine the adjudication process.