Dr Derek Ross is a Chartered Arbitrator, Accredited Mediator, Conciliator, Adjudicator and Dispute Board Member, and he accepts appointments worldwide as the neutral person in each of these construction dispute resolution methods.
Being also a Chartered Civil Engineer, he also accepts appointments as Expert Witness in building and civil engineering construction disputes.
His practice, Layng Ross, offers Party Representative Services in respect of construction contract claims and disputes in excess of £40,000.
If you feel Dr Ross can assist you, please call him for a no obligation discussion on +44 (0) 1932 856463, or simply reply to this email with your details.
Below is an article he has written, which he hopes you will find of interest.

FORUM SHOPPING

There has been much debate recently about whether a Referring Party in a UK construction adjudication is entitled to refuse to proceed with the adjudicator initially nominated by an Adjudicator Nominating Body (‘ANB’), and then reapply to the same ANB for a different nominee. This so-called forum shopping is what happened recently in a dispute between Lanes Group plc and Galliford Try Infrastructure Limited (see [2011] EWHC 1035 & 1234 and [2011] EWCA Civ 1617). Whilst the courts do not find the practice attractive, they have not outlawed it, largely it seems because the right to refer a UK construction dispute to the decision of an impartial adjudicator is a statutory right, which is not lost if the Referring Party fails to proceed with the ANB’s initial nominee.

In UK adjudication it is not difficult for the Referring Party to get rid of an ANB’s nominee, as the nominee’s potential jurisdiction automatically lapses if he is not served with the Referral Notice within 7 days of the date of the Notice of Intention to Adjudicate (see Hart v. Fidler [2007] BLR 30). The usual problem of the Referring Party who withholds its Referral Notice for that purpose is that it will generally need to reapply to the same ANB if it wishes to proceed with adjudication, and usual practice amongst UK ANBs is to re-nominate the same adjudicator. However, where the Referring Party has genuine objections to the suitability or impartiality of the initial nominee, I believe the ANB has a duty to take those objections fully into account before deciding the re-nomination. To do otherwise risks making the ANB complicit in depriving the Referring Party of its statutory right to adjudicate in front of an impartial adjudicator in whom it has confidence.

It has been suggested that ‘forum shopping’ is unfair because the Responding Party does not have the same adjudicator selection opportunity. Whilst the selection opportunity aspect is undoubtedly true, the practice is not necessarily unfair if its objective is to obtain a neutral adjudicator who will be seen to be truly unbiased towards both parties. It would indeed be objectionable if its sole purpose was to try to get an adjudicator who may be biased towards the Referring Party. The test however is not whether the adjudicator is actually biased, but whether he would appear so to a fair-minded and informed observer with knowledge of all of the surrounding circumstances. If that test is met, then the ANB would be doing the parties a disservice if it did not nominate a different adjudicator. The original nominee would also be doing the parties a disservice if he were to accept re-nomination if offered, as if matters progress to a Decision, it may well prove unenforceable for apparent bias. Sadly for adjudicators, declining some nominations is often the price they have to pay for pursuing parallel party representative careers.

Dr Derek Ross
26 January 2012

Please Note: The foregoing article has been prepared by Dr Derek Ross for the general interest and benefit of readers. It is not intended to be a definitive analysis of the law or of other matters discussed. Neither does it create a client relationship between the recipient and Dr Ross. Thus no liability is accepted in respect of any reliance placed on any statements made in the foregoing article. Proper advice ought always to be taken before deciding to take, or not to take, action in respect of a specific issue.

© 2012 Dr Derek Ross & Layng Ross Construction Disputes Resolution.