REUTERS | Jumana El Heloueh

Adjudicator bias after PC Harrington v Systech

The most obvious consequences of Lord Dyson’s judgment in PC Harrington v Systech (non-payment of adjudicators for non-enforceable decisions where there has been a breach of the rules of natural justice) have been written about and discussed at length over the three months since the Court of Appeal handed down its judgment.

However, one topic that has not featured (as far as I’m aware), is the idea that the judgment may, in some way, impact on an adjudicator’s behaviour. For those of you wondering what an earth I am talking about, let me explain.

A fair hearing by an impartial tribunal

One of the tenets of natural justice is that a party has the right to a fair hearing by an impartial tribunal. That right may be breached if the tribunal shows bias or apparent bias. While actual bias may rarely occur or be alleged, we have seen a number of judgments over the years looking at what behaviour may equate to apparent bias.

The test for bias has its roots in the judgment in Re Medicaments, where Lord Phillips said that bias is:

“an attitude of mind which prevents the judge from making an objective determination of the issues he has to resolve.”

Lord Phillips referred to the “fair minded and informed observer” who may think the judge (or adjudicator) was biased. He went on to give a number of examples, including that a judge may be biased:

“… because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness.”

In adjudication terms, we can look to the judgments of Dyson J in AMEC Capital Projects Ltd v Whitefriars City Estates Ltd and Akenhead J in Cantillon Ltd v Urvasco Ltd for guidance.

Does getting paid influence the adjudicator?

Prior to PC Harrington v Systech, it had been the case that an adjudicator would almost always be entitled to be paid, come what may. Now that has changed, I wonder if, during enforcement proceedings, we will start to see losing parties arguing that there has been some form of bias in the adjudicator’s decision making process, which has led to them losing? The rationale being that the adjudicator was more concerned with the payment of his fees at the end of the process and has, in some way, been influenced by that idea when deciding which party will “win” the adjudication.

It may be a sad day for adjudication if this does happen. As Dyson J said:

“Judges are assumed to be trustworthy and to understand that they should approach every case with an open mind. The same applies to adjudicators, who are almost always professional persons.”

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