Harding v Paice: the latest installment in a long-running saga
In a decision handed down 26th August, Ms Finola O’Farrell QC (sitting as a deputy High Court Judge) has held that Mr Paice and Ms Springall (‘the Employers’) are entitled to have a recent adjudication decision of Mr Christopher Linnett enforced. She did not accept the submissions made by Mr Harding (‘the Contractor’) that (i) the Adjudicator’s decision was reached too late and therefore a nullity or (ii) that there was apparent bias on his part.
This was the fifth adjudication between the parties. The third of those adjudications was the first in relation to a disputed termination account submitted by the Contractor. In that third adjudication, Mr Linnet ordered the Employers to pay £397,012 on the basis that they had failed to serve the appropriate pay less notice.
The Employers were aggrieved by that decision and started a fourth adjudication to have the proper value of the termination account determined. The Contractor sought to restrain those adjudication proceedings by injunction on the grounds that the value of the account had already been determined in the third adjudication. Edwards-Stuart J refused to grant the injunction. The Court of Appeal upheld his decision on the basis that there had been no decision in relation to the actual value of the final account.
In the fourth adjudication, the Employers secured a decision from Mr Robert Sliwinski in which he decided the account had been overstated and ordered the Contractor to repay £325,484 to the Employers. The Contractor successfully resisted enforcement proceedings before Coulson J on the grounds of apparent bias on the part of the Adjudicator. Following that decision, the Contractor made a formal complaint to the RICS in respect of Mr Sliwinski’s conduct of the adjudication.
The fifth adjudication was the Employers’ most recent attempt to have the termination account properly determined. On 27 April 2016, having carried out an evaluation of the account, the Adjudicator, Mr Linnett, ordered the Contractor to pay £296,006 to the Employers.
Enforcement proceedings were commenced and resisted by the Contractor on the grounds that (i) he had not agreed to extend time for the Adjudicator’s decision which was consequently given out of time and (ii) the Adjudicator was guilty of apparent bias because he had provided a character reference for Mr Sliwinski in connection with the RICS disciplinary hearing but had not disclosed that fact to the parties.
In support of the former, the Contractor relied upon the terms of various letters in which he had said that the Adjudicator did not have jurisdiction because the Employers had attempted to refer the dispute under the wrong procedural rules and whilst he would agree to an extension of time for the Adjudicator to reach a non-binding expert determination, he could not agree to an extension of time for an adjudication decision in circumstances where he did not accept the Adjudicator’s jurisdiction. As his solicitor put it: ‘he could not agree to an extension to that which he maintains does not exist.’
The Judge dismissed that argument. She accepted the Employers’ submission that the reservation in respect of the adjudication was based on the jurisdictional challenge and that once that challenge fell away, so too did the reservation. She therefore concluded that the decision was reached within the period agreed by the parties.
So far as apparent bias was concerned, the Judge said that she did not think Mr Linnett had an obligation to disclose the fact that he provided a general character reference for Mr Sliwinski. On an objective basis, Mr Linnett’s view of Mr Sliwinski could not reasonably be considered to impact on the exercise he was required to undertake in the adjudication. She said that although the Contractor ‘might well be over sensitive to issues of perceived impartiality and fairness given the serial adjudications in this matter, the test is an objective one and a fair-minded and informed observer would conclude that there was no real possibility that the tribunal was biased.’