HT-2025-LDS-000008 - [2025] EWHC 2224 (TCC)

Was the information provided false? In order to determine whether or not the Defendant has a realistic prospect of successfully arguing that it was false, it is necessary to examine and assess the adequacy of the evidence given by the Claimant.

In support of its assertions, the Claimant relies upon the evidence of Mr Birchall and Mr Bailey. Unfortunately, neither of them deal at all with why it is asserted that the Claimant was in dispute with Mr Bunker. In the referral form, no details are beyond the bare assertion that there is a dispute over payment between the Claimant and Mr Bunker. When this assertion was made on the referral form, the Defendant specifically asked the Claimant to identify the alleged dispute. Thereafter, repeated requests were made by the Defendant to identify the dispute. Those requests for information were ignored.

Unfortunately for the Claimant, in my judgment, it remains the situation that the Claimant has never set out any adequate explanation as to why it asserts that there was a dispute. There is no evidence or assertion by the Claimant that it disagreed with or argued with Mr Bunker about his fees, or challenged the underlying entitlements to the amount of fees. The Claimant simply did not pay them.

Thereafter, as I would expect, Mr Bunker chased payment of his fees. Mr Bunker chased both the Claimant and the Defendant. When the fees were still not paid, Mr Bunker threatened legal action against both the Claimant and the Defendant. At that stage, although the Claimant had been directed to pay the fees, the Defendant knew that it was jointly and severally liable for the fees and so the Defendant paid them. Once he had been paid, Mr Bunker had no fee dispute with either party. It cannot have mattered to him who paid his fees. It is quite possible (without descending into speculation) that there was an agreement between the Claimant and the Defendant to the effect that the Defendant would pay the fees and the Claimant would reimburse or set the payment off against another agreed debt.

It is asserted that the Claimant was “concerned” that the steps taken by Mr Bunker to pursue payment of his fees constituted a “risk” that there would be a perception of apparent bias against the Claimant by both Mr Bailey and Mr Birchall. However, there is no attempt whatsoever to justify this bald assertion. There is no evidence from either witness about:

Mr Birchall states that he “genuinely believed at the time of the adjudication that it was appropriate to bring the above issues to the attention of RICS…” and that he had “no reason to believe that the concerns raised by RNJM did not meet the definition of conflict of interest as stated in the RICS guidance note”. However, he does not state that he had considered the Eurocom case and the warning set out therein and on the form itself.

Mr Birchall said that the Claimant told him that it was “concerned that Mr Bunker had chased for payment of his fees and had threatened court proceedings against them”. The Claimant then asked if that information should be raised with RICS as a potential conflict of interest. Mr Birchall set out the guidance of which he said he was aware from the RICS “Conflicts of interest for members acting as dispute resolvers” second edition, November 2020.

As a result of that guidance, Mr Birchall asserts that he was “concerned” that the steps taken by Mr Bunker to pursue payment of his fees “constituted a risk that there would be a perception of apparent bias against the Claimant”. He asserts that it was therefore reasonable that the Claimant’s “concerns of potential bias were set out to RICS in the nomination form”. As a result of following the RICS definition, Mr Birchall asserts he had a genuine belief that there was a conflict of interest between the Claimant and Mr Bunker.

In addition, Mr Birchall asserted that he had formed the view that if he was mistaken about the potential conflict, RICS would disregard the representation. He formed this view because he was aware that the RICS “make their own independent decision” as to the adjudicator they nominate and he relied on the wording on the form at page 4:

“Please note: while RICS and/or the president/chairman will give careful consideration to any representations, they will reach their own decision as to who is nominated. Notwithstanding any such statements, the RICS and/or the president/chairman of RICS always retains an unfettered discretion to nominate any adjudicator they regard as suitable. RICS sometimes received representations as to the identity of an adjudicator. However, each case is considered on an individual basis and RICS will not be bound by representations made”.

In my judgment, it is relevant that the severe consequences (if a potential conflict was not justified that the adjudication will be void) are not addressed by the Claimant’s evidence. The consequences are set out on the face of the form itself. The process of appointment and any subsequent decision will be void. It is surprising that, if Mr Birchall considered at the time that if he could be mistaken about the potential conflict, he simply assumed that the RICS would disregard the representation about Mr Bunker. There is no evidence about Mr Birchall warning the Claimant of this consequence.

In such circumstances, it is surprising that the potential conflict was set out in such minimum detail as is seen on the form without any further explanation. It is the Claimant that chose not to answer any of the questions raised by the Defendant about the dispute alleged.

The evidence provided by the Claimant is wholly inadequate to establish the nature of and reason for asserting that there was an alleged dispute. The numerous questions raised by the Defendant are legitimate. The fact that the Claimant chose not to answer any questions nor provide any evidence about the nature of the dispute is telling. The questions remain concerning the Claimant identifying a potential but unjustified conflict on the form, why the Claimant that asserted any dispute amounted to a conflict of interest with Mr Bunker and on what basis the Claimant asserted an “honest” belief that it had a conflict of interest with Mr Bunker.

For all of the reasons set out above, I have no hesitation in refusing the Claimant’s application for summary judgment. I find that the Defendant has a realistic prospect of successfully arguing the various points it raised about the lack of jurisdiction of the adjudicator on the basis that the Claimant made a false statement about a conflict of interest on the adjudication referral form.

Having made that finding, it is not necessary to consider whether or not there was an implied term to act honestly during the nomination process when making a referral to adjudication. It is also not necessary to determine whether or not it is appropriate to grant a stay of execution.

The Claimant’s application for summary judgment is dismissed.