Cases - Glencot Development & Design Ltd v Ben Barrett & Son (Contractors) Ltd
Record details
- Name
- Glencot Development & Design Ltd v Ben Barrett & Son (Contractors) Ltd
- Date
- [2001]; (2001)
- Citation
- BLR 207; CILL 1721, 80 Con LR 14
- Legislation
- Keywords
- Construction contracts - adjudication - adjudicator acting as mediator - bias - impartiality - suspension of mediation - negotiations - whether there was a real possibility of the adjudicator being biased
- Summary
-
Glencot were appointed by Barrett to supply mild steel wind posts, which Barrett had to provide as part of their brickwork subcontract.
Disputes arose between the parties in relation to the entitlement of Glencot to a claimed additional sum of approximately £350,000, which Glencot referred to adjudication.
During a recess in the adjudication meeting, Glencot and Barrett reached agreement on a valuation of the works but subsequently disputed whether that agreement included a 3% discount. Parties requested that the adjudicator mediate on this point for them, which the adjudicator agreed to do. From the outset the adjudicator had stated, and the parties had agreed, that the adjudicator would continue with the adjudication if the mediation failed to result in a final agreement.
The adjudicator moved to and fro between the parties, meeting with them and their representatives in the absence of the other party and also meeting the parties together. A figure was agreed in the early evening, but other points (such as time for payment) could not be resolved that day.
During the course of a subsequent meeting, Barrett argued that his position as adjudicator had been compromised by being involved in the mediation or negotiation and that he should withdraw.
The adjudicator took counsel's advice and decided not to withdraw. The adjudicator proceeded to issue his decision, which Glencot sought to enforce by way of summary judgment.
The judge concluded that, for the purposes of the summary judgment application, Barrett had shown that it had real prospects of success in establishing that the adjudicator was no longer impartial as a result of what took place during the course of the mediation. The adjudicator's own appreciation of those events led him to write to the parties asking them to decide whether they wished him to continue. The judge stated that he had reached the conclusion that any fair-minded and informed observer would conclude that the adjudicator's participation in the lengthy discussions during the attempted mediation meant that there was a real possibility of him being biased.
The judge concluded that Barrett had made out a substantial case and that, far from having no real prospect of success, it had, on the present evidence, very good prospects. Moreover, the judge concluded that issues such as these should not be decided on a summary application.