Comment
It was not merely a procedural defect in the adjudicator's appointment or the adjudication, rather the adjudicator "was not appointed to act in the adjudication at all" . Furthermore Kingstone had not in fact waived its right to object since they had insufficient knowledge of the facts to give such a waiver. There was no waiver by election because Kingstone were never in the position of having to make a choice. For the same or similar reasons, (amongst others, being that there was no reliance by Lane End on Kingstone’s stated position) the judge also rejected arguments that Kingstone was estopped from challenging the adjudicator's jurisdiction. In the result the application for summary judgment was dismissed and Kingstone succeeded on its application for a declaration.
The judgment goes into some detail on the questions of waiver and estoppel but the findings are largely fact based and therefore of limited application. What is of wider application is the finding that it is not possible to waive such a fundamental defect as a failure to appoint an adjudicator to act in the adjudication. It is also of interest to note that the judge exercised his discretion to exclude the evidence from the covert recording of the parties’ meeting and the witness evidence supporting that recording. He held that it had limited probative value and would give rise to procedural unfairness if admitted. It raised issues under the Human Rights Act 1998 though on preliminary consideration may not have breached such rights. It also raised issues under the General Data Protection Regulation ((EU) (2016/679)) and there was not sufficient evidence or time to give full consideration to such issues.
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