Adjudicator appointment process
By Victoria Russell, Fenwick Elliott
CSK Electrical Contractors Ltd v Kingwood Electrical Services Ltd [2015] EWHC 667 (TCC) (11 March 2015)
In this adjudication enforcement case, a number of defences were unsuccessfully raised. One of these was that the appointment was invalid. Mr Justice Coulson noted that the decision in Eurocom Ltd v Siemens plc [2014] EWHC 3710 (TCC) had “shaken public confidence in the adjudication process”. Here, the adjudicator was appointed by CEDR. The application to CEDR for the appointment, made by the claimant’s representatives, included the sentence: “It is preferred that any of the adjudicators in the attached list are not appointed.” The evidence before the court was that that sentence was included in error, and the Judge suggested that it may be that it came from a template that those representatives habitually used. However, the important thing was that there was no attached list. Therefore, not only was that sentence included in error, but also no list of “preferred adjudicators not to be appointed” was ever completed or attached. In those circumstances, therefore, the situation was entirely different to that in Eurocom. In Eurocom, Ramsey J identified three issues arising in a fraudulent misrepresentation case, namely: “First, whether a false statement was made; second, whether any false statement was made fraudulently or recklessly and thirdly, the effect of any such statement”. There was no false statement because there was no list and, since there was no statement, it could not have had any effect.