A couple of interesting points arise from the recent case of Eurocom v Siemens.
- Eurocom’s application to the RICS for the appointment of an adjudicator. In their application Eurocom alleged that a number of adjudicators, who they named, were conflicted and should not be appointed. An adjudicator was then appointed who had not been named by Eurocom.
Ultimately Eurocom commenced proceedings in the Technology and Construction Court (‘TCC’) to enforce the adjudicator’s award. In evidence it was admitted that none of the potential adjudicators named by Eurocom were in fact conflicted and the reality was that Eurocom simply did not want the individuals it had named deciding the dispute.
The TCC held that there had been fraudulent misrepresentation, that the appointed adjudicator had no jurisdiction to decide the adjudication and that his decision was a nullity.
Subsequently the RICS has changed its adjudicator appointment form which provides guidance on the issue of conflicts.
This decision suggests that it would be good practice for the referring party to be transparent with any application and that a responding party should always review the referring party’s application.
It was also suggested that an adjudicator who is appointed in relation to one adjudication in respect of a specific contract should be appointed in relation to all subsequent adjudication in relation to that contract. Clearly this has the potential to save costs but following the court’s suggestion could have adverse implications where delay may occur if adjudicator is not immediately available. Caution might also have to be exercised if the second adjudication related to an element of the contract better suited to an adjudicator with a different professional background. For example the expertise offered by architects and surveyors sitting as adjudicators may make them more suited to deciding extension of time claims and loss and expense claims respectively.