Appointment Of An Adjudicator By A Nominating Body: Fraudulent Misrepresentation - Eurocom Limited v Siemens Plc

Author:Ms Shona Frame and Greg Sibbald
Profession:MacRoberts
 
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Introduction

The case of Eurocom Ltd v Siemens [2014] is a lesson in how not to complete a form for the appointment of an adjudicator.

The Facts

A dispute arose between the parties regarding the installation of communications systems at Charing Cross and Embankment underground stations. Eurocomac took Siemens to adjudication.

The nominating body was the RICS whose nominating form contains a question asking whether there are any adjudicators who would have a conflict of interest. In seeking appointment of an adjudicator, Eurocom's representative was said to have answered this question by listing 13 individuals as well as anyone connected with a specific firm of solicitors who had previously advised Siemens.

Many of the 13 people named did not have a true conflict, but were people that Eurocom's advisors wanted to avoid being appointed as the adjudicator. An award was made in Eurocom's favour but Siemens refused to implement it. They argued that the nomination process of the adjudicator caused the award to be invalid.

The Issues

Was the appointment of the adjudicator invalid because of the information provided to the RICS?

The Decision

Yes! The court refused Eurocom's application for summary judgment for enforcement of the adjudicator's award. It said there was a strong prima facie case that Eurocom's representative had deliberately and recklessly answered the question falsely and therefore that a fraudulent misrepresentation had been made to the RICS.

This invalidated the process of appointment and made the appointment a nullity so that the adjudicator would not have jurisdiction.

In making its decision the Court drew attention to the evidence of Eurocom's representative, and in particular his statement that:

"I largely use this box as a means of stating to which adjudicators, based on past experience, I would not send a referral document: in effect a pre-emptive rejection list."

The Court was also satisfied that the individuals listed had no real conflict and...

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