Fileturn Ltd v Royal Garden Hotel Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EDWARDS-STUART,The Honourable Mr Justice Edwards-Stuart |
| Judgment Date | 13 July 2010 |
| Neutral Citation | [2010] EWHC 1736 (TCC) |
| Docket Number | Case No: 2010-TCC 27826 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 13 July 2010 |
Before: The Honourable Mr Justice Edwards-Stuart
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Mr Charles Pimlott (instructed by Silver Shemmings LLP) for the Claimant
Mr James Bowling (instructed by Fenwick Elliott) for the Defendant
Hearing date: 6th July 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Honourable Mr Justice Edwards-Stuart:
Introduction
By an application dated 10 June 2010, the Claimant (“Fileturn”) seeks summary judgment against the Defendant (“RGH”) pursuant to Part 24 of the Civil Procedure Rules to enforce an adjudicator's award in the sum of £219,635.14 plus VAT plus interest. The award was made by Mr R Sliwinski in a decision in dated 24 May 2010.
The application is resisted on the ground of apparent bias on the part of Mr Sliwinski. This is said to arise out of a pre-existing relationship between Mr Sliwinski and Mr Richard Silver, of Alway Associates, who represented Fileturn in the adjudication.
Alway Associates carry on business as construction claims consultants from various offices in England and Wales. Between March 2001 and February 2004 Mr Sliwinski was a director of Alway Associates. He then left the company to become a partner in a firm of solicitors, Wright Hassell LLP, and then about two years later he left that firm to set up his own practice in dispute resolution. He acts as an adjudicator on a regular basis, and is on the panels of both the Royal Institute of Chartered Surveyors and the Chartered Institute of Arbitrators.
During the period whilst Mr Sliwinski was with Alway Associates Mr Silver was based in the company's Epping office, whereas Mr Sliwinski was based in the company's Banbury office.
It seems that Mr Sliwinski is an adjudicator favoured by Mr Silver because he has requested his appointment as an adjudicator in about a dozen disputes over the last few years, although Mr Sliwinski was in fact appointed in only two of those adjudications (one being the adjudication the subject of the present dispute).
It is the existence of the previous association of Mr Sliwinski and Mr Silver whilst they were both directors of Alway Associates, together with the fact that Mr Sliwinski has acted as an adjudicator in about 10 adjudications in which Alway Associates has acted for one of the parties, that gives rise to the allegation of apparent bias.
The correct approach on this application
Since this is an application under CPR Part 24 I have to consider whether RGH has no real prospect of successfully defending the claim to enforce Mr Sliwinski's award. In order to do this I must carry out the exercise of assessing RGH's prospects of success if this action were to go to trial, but I emphasise that I am making an assessment and not conducting a trial, or even a mini-trial (see Three Rivers DC v Bank of England [2003] AC 1, at 282, per Lord Hobhouse).
There is no dispute between the parties as to the test for apparent bias. It is whether the informed and fair-minded observer, having considered the relevant facts, would conclude that there was a real possibility that Mr Sliwinski was biased: see Porter v Magill [2002] 2 AC 357.
However, in the context of an application to enforce the award of an adjudicator, I have been reminded by Mr Charles Pimlott, who appears for Fileturn, of the observations made by Dyson LJ (as he then was) in Amec Capital Projects Ltd v Whitefriars City Estates [2004] EWCA Civ 1418, at paragraph 22:
“It is easy enough to make challenges of breach of natural justice against an adjudicator. The purpose of the scheme of the 1996 Act is now well known. It is to provide a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending final determination of disputes by arbitration, litigation or agreement. The intention of Parliament to achieve this purpose will be undermined if allegations of breach of natural justice are not examined critically when they are raised by parties who are seeking to avoid complying with adjudicators' decisions. It is only where the defendant has advanced a properly arguable objection based on apparent bias that he should be permitted to resist summary enforcement of the adjudicator's award on that ground.”
Observations to similar effect were made by Chadwick LJ in Carillion Construction Limited v Devonport Royal Dockyard Ltd[2005] EWCA Civ 1358, where he said, at paragraph 87:
“In the overwhelming majority of cases, the proper course for the party who is unsuccessful in an adjudication under the scheme must be to pay the amount that he has been ordered to pay by the adjudicator. If he does not accept the adjudicator's decision as correct (whether on the facts or the law) he can take legal or arbitration proceedings in order to establish the true position. To seek to challenge the adjudicator's decision on the ground that he has exceeded his jurisdiction or breached the rules of natural justice (save in the plainest of cases) is likely to lead to a substantial waste of time and expense …”
Basing myself on these authorities I must consider the extent to which it is arguable that it may be held at trial that this is a plain case of apparent bias: the matter must be looked at broadly and it is only if I consider that RGH has no real prospect of making good its case at trial that I should give summary judgment.
It is established by the authorities that the task of the court at trial will be to ascertain all the circumstances which have a bearing on the suggestion that the adjudicator was biased, and it must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the adjudicator was biased (see Porter v Magill[2002] AC 357, approving the judgment of Lord Phillips MR in Re Medicaments [2001] 1 WLR 700, at paragraph 85).
In Re Medicaments Lord Phillips MR said also, at paragraph 86, that the material circumstances to be considered by the court will include any explanation given by the adjudicator under review as to his knowledge or appreciation of those circumstances. He said that where that explanation is accepted by the applicant for review it can be treated as accurate but, where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. He went on to say: “The court does not have to rule whether the explanation should be accepted or rejected: rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced”.
The material facts disclosed by the evidence on this application
The material facts as disclosed by the evidence in support of the application and in the form of replies to requests for further information can be summarised as follows:
(1) For the first 10 years of his career Mr Sliwinski was employed as a Quantity Surveyor in professional practice.
(2) From 1990 to 2000 Mr Sliwinski practised as a barrister, dealing mainly with construction disputes. During this period he began to act as an adjudicator and as an arbitrator, being appointed to the RICS Adjudication Panel and the CIArb Construction Adjudication Panel.
(3) In March 2001 Mr Sliwinski became a director of Alway Associates based in the Banbury office. During this period Mr Silver was a director based at the Epping office, and it appears that Alway Associates had 4 “full” directors and 4 associate directors. Mr Sliwinski and Mr Silver, who were both full directors, had their own separate caseloads although they did work together on one or two occasions during 2002/2003. They met socially only at Alway Associates' annual summer function. Mr Sliwinski left the company in February 2004.
(4) In March 2004 Mr Sliwinski became a partner in Wright Hassell LLP. He left Wright Hassell in March 2006 to set up his own practice, SWL Dispute Resolution.
(5) During the past 10 years Mr Sliwinski has conducted about 250 adjudications.
(6) In those adjudications Alway Associates have acted for one of the parties on about 10 occasions, in two of which Mr Silver has been the advocate. On one of those two occasions Mr Sliwinski had been asked for by name by Mr Silver.
(7) Mr Silver has made applications for the appointment of an adjudicator on more than 150 occasions. On about 12 occasions he has requested Mr Sliwinski. On only one occasion – the present case—has Mr Sliwinski been appointed after Mr Silver had specifically requested him by name.
(8) No-one in Alway Associates, apart from Mr Silver, has ever requested Mr Sliwinski to act as an adjudicator.
(9) Mr Sliwinski has also been appointed as adjudicator where either Wright Hassell LLP or Knowles, for whom he had also worked in the past, acted for one of the parties.
(10) There is no information about the outcome of any of the previous adjudications in which a representative of Always Associates has represented a party before Mr Sliwinski.
There is one further potentially relevant matter that is not agreed. By a letter dated 30 June 2010 Fenwick Elliott, who act for RGH, asked how often Alway Associates had asked for Mr Sliwinski to be nominated as an adjudicator. The answer was that Mr Silver had asked for Mr Sliwinski on 12 occasions but that no one else in Alway Associates had asked for him. Fenwick Elliott also asked...
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