Eurocom revisited29 April, 2015
CSK Electrical Contractors Ltd v Kingwood Electrical Services Ltd (2015) is an adjudication enforcement case which came before the TCC. One challenge was that the appointment of the adjudicator was invalid.
The challenge based on validity of appointment followed the TCC’s decision from last year in Eurocom Ltd v Siemens Plc. In Eurocom the adjudicator was appointed through the RICS. Accompanying the nomination form was a list of potential adjudicators who would, it was said, have a conflict of interest and so should not be considered for appointment. The adjudicator’s decision in Eurocom was challenged when the matter came before the TCC at the enforcement stage. The suggestion that the potential adjudicators on the list would be conflicted was established by the TCC to be false and it was furthermore determined that there was a strong possibility that the Referring Party either made the statement deliberately or with no real concern for its accuracy. This was sufficient to invalidate the appointment and the decision was consequently a nullity.
In CSK, the application for the appointment of an adjudicator was made to CEDR and the application included the sentence “it is preferred that any of the adjudicators on the attached list were not appointed.” There was, however, no accompanying list.
There were two arguments deployed by the Referring Party to uphold the appointment and to distinguish the case from Eurocom. The first was that the statement quoted above was left on the form in error and the absence of the accompanying list supported that. Furthermore, without the accompanying list there was no completed statement which would bring the decision in Eurocom into play. The second argument was that even if the application was accompanied with the list, it amounted to a statement of preference only and not a false statement as was the case in Eurocom.
The TCC found for the Referring Party on the first argument and so found it unnecessary to consider the second argument but did indicate that a statement of preference could amount to a misrepresentation, thereby engaging the Eurocom decision.
Parties are free to, and should, when applying to a nominating body for adjudicator appointment, flag the details of any specific adjudicator who should not be appointed in a particular case. Following Eurocom, any party who seeks to do this must be satisfied that the reasoning given is sound and, following CSK, expressing objections by reference to a list of preferred non-appointees may not be sufficient to avoid the effect of Eurocom.
Reviewed in 2015