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

It is convenient to deal with these two questions together. The parties approach these questions in slightly different ways. Both parties referred extensively to the Eurocom case.

In that case the Claimant, Eurocom, sought summary judgment to enforce the decision of an adjudicator. Ramsey J considered the effect upon an adjudication where a referring party’s representative had made fraudulent representations when applying to the RICS for an adjudicator to be nominated. Eurocom had represented on the application form seeking the appointment of an adjudicator that no fewer than 13 potential adjudicators had conflicts of interest, when in fact this was not true.

It was held that “[75]… the fraudulent misrepresentation would invalidate the process of appointment and make the appointment a nullity so that the adjudicator would not have jurisdiction”.

He found on the evidence that the Defendant had established “[83]… a

On that basis he found the Defendant had established real prospects of successfully defending the claim to enforce the adjudicator’s decision. Accordingly, for that and other reasons the application for summary judgment failed.

The Claimant submits that the Defendant’s assertion that there was a false representation is misplaced and seeks to distinguish Eurocom. The Claimant submits that the distinguishing features are that in Eurocom the representative named numerous people – the 13 entries on the form about conflicts of interest included “anyone connected with Fenwick Elliott solicitors who have advised the Referring Party”. The Claimant relies upon the fact that there was no reasoning given for the inclusion of many of the 13 entries at all, never mind a reason which would amount to a conflict. The justification given by the representative in Eurocom was that he used the conflict box “as a means of stating to which adjudicators, based on past experience, I would not send a referral document”.

While it is true in Eurocom that in 11 cases there was no reasoning given on the form, in respect of two potential adjudicators, a fees issue was raised.

The Claimant seeks to distinguish the Eurocom case on the basis that Mr Birchall only asserted a conflict of interest against two potential adjudicators. In addition, Mr Birchall explains the reason for the inclusion of Mr Bunker in the section dealing with conflict of interest. He stated:

“RJNM and I had a genuine belief that the payment dispute with Mr Bunker over his fees on the previous adjudications was a potential conflict and, if this was not the case, the RICS procedure entails that it would disregard the notification as they are not bound by representations made about individual adjudicators”.

The Claimant also argues that on the basis of the reasons given by Mr Birchall, it was reasonable for him to conclude that a fair-minded observer would conclude that Mr Bunker would be biased. In addition, no evidence or confirmation has been provided from Mr Bunker to say that he would not have been biased on the facts of this particular dispute. The fact that both witnesses asserted they each held an honest belief sufficed.

In response, the Defendant identifies a number of reasons for submitting that it has a realistic prospect of successfully arguing at trial that:

In laying out the various reasons why Ms Dynes asserted that the Defendant had a realistic prospect of success in its defence, she provided the court with a chronology and a detailed comparison and analysis of the Claimant’s witness statements in response to the statement of Mr Warr. Adjacent to the individual comparisons between the paragraphs of the witness statements of both Mr Bailey and Mr Birchall, she noted the very high amount of duplication and exact wording between the two statements.

She also listed numerous “unanswered questions” and made observations about the inadequacy of the Claimant’s evidence, even after the statement of Mr Warr. She asserted that the paucity of the evidence provided in response by the Claimant spoke volumes. In effect, the Claimant’s evidence in response only served to underline the inadequacy of explanation and reasoning given by the Claimant as to:

The Defendant further argued 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.

When Mr Bunker chased payment of his fees. Mr Bunker chased both the Claimant and the Defendant. The Defendant questions why the Claimant thinks there is a risk that it would be singled out when both parties were responsible for paying Mr Bunker’s fees. Further, and in any event, any dispute there may have been about fees was only between the Claimant and the Defendant. Once the Defendant had paid Mr Bunker’s fees (before the Claimant requested an adjudicator for the fifth adjudication), Mr Bunker drops out of the dispute picture.