Woman hand take clipboard on white background

Last year, we blogged  about the Eurocom case where the Court refused to enforce an adjudicator’s decision because it found that there had been fraudulent misrepresentations made by the referring party when applying to the RICS for an adjudicator to be appointed [1]. In that case, individuals that would have a conflict of interest if appointed as adjudicator were falsely listed in the application form in an attempt to avoid the appointment of any of those adjudicators.

The advice, following that case, is that parties should take a pragmatic approach in listing any potential adjudicators that are conflicted thereby taking them out of the pool of candidates when applying to the relevant nominating body. If a name is included on the appointment form and the individual does not have a genuine conflict of interest, the risk is that the decision could be rendered unenforceable.

The Court had to grapple with this issue in another recent case [2] where it was argued that the referring party, CSK Electrical, had made a fraudulent misrepresentation when applying to the nominating body.

In this case, two adjudication decisions found in favour of CSK Electrical, an electrical contractor, who was engaged to carry out works at Twickenham. The responding party, Kingwood Electrical, did not comply with the adjudicators’ decisions and as such, the referring party started a court claim to enforce the decisions.

Kingwood Electrical sought to defend the enforcement, putting forward a number of arguments. For the purposes of this blog, the argument of note was that based on the Eurocom case, whereby it was alleged that the appointment of the adjudicator was invalid as there had been a fraudulent misrepresentation when the referring party had applied to the nominating body.

The basis of this allegation was that the letter to the nominating body included the wording “it is preferred that any of the adjudicators in the attached list are not appointed”. In actual fact no list of potential adjudicators was attached to the letter. Nevertheless, Kingwood Electrical argued that this ought to invalidate the appointments and render the decisions unenforceable.

The Court held that the position in Eurocom was very different, as in this case, no false statement had been made as to whether certain adjudicators could or could not be appointed. The wording had apparently been included in error.

The Court did not deal with whether enclosing a list of preferences would have amounted to a Eurocom situation and invalidate the appointments but it did acknowledge that a stated preference may in some circumstances amount to a misrepresentation but that would never be straightforward.

No indication was given as to what the ‘circumstances’ might be.

While this case does not create any new law, it serves as a useful reminder of the courts’ robust approach to enforcement of adjudicators’ decisions. It is also interesting to see the court’s approach to Eurocom, as the Court acknowledged that Eurocom has “shaken public confidence in the adjudication process.”

For more information, email blogs@gateleyuk.com.

[1] Eurocom Limited v Siemens Plc [2014] EWHC 3710 (TCC)

[2] CSK Electrical Contractors Ltd v Kingwood Electrical Services Ltd [2015] EWHC 667 (TCC)

Leave a Reply

Your email address will not be published. Required fields are marked *

nineteen + 1 =

This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.