REUTERS | Alex Domanski

Bias comes in all shapes and forms

My last post was all about unconscious bias, derived from an alleged relationship between the arbitrator and party representatives. It got me thinking about other types of bias that may be alleged, especially in adjudication where you have a modest number of companies adjudicating, with an even smaller number of party representatives and adjudicators.

Everyone accepts that bias (actual, apparent or even unconscious) can take many shapes and forms. In Re Medicaments, 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.”

Prejudice against a party representative?

I wondered whether the same could be said of prejudice against a party representative. Could there be unwitting or unconscious bias from the adjudicator, depending on who that representative is?

Just as a good reputation may precede someone, so does a bad one, and there are a number of representatives who (potentially) do themselves and their clients no favours by being consistently rude to or difficult with the adjudicator. I have even heard, anecdotally, of some adjudicators refusing to accept appointments because of certain representatives’ reputations and the hassle associated with those firms.

While it may be difficult to say that the adjudicator’s mind has been poisoned by the behaviour of those representatives, it is arguable that his judgment may have been clouded. If that was the case, then it is also arguable that the adjudicator could be biased against that representative and client. Then the adjudicator would be on very thin ice and in danger of having his decision ignored and challenged on enforcement. That isn’t somewhere I want to go.

When a party representative is rude or oversteps the mark

There is also the danger of an adjudicator reacting when a party representative is rude or oversteps the mark. It is much better to take a deep breath and go for a walk around the block than put pen to paper and respond to that party immediately. For example, in Amec v Whitefriars, in the second adjudication one party threatened the adjudicator, Mr Biscoe, with court proceedings to recover its wasted costs in the first adjudication. Mr Biscoe responded by letter, and calmly explained:

“I shall act impartially and in accordance with the correct procedure. I shall not be deterred from discharging my duties as an adjudicator and find it improper that solicitors representing the Respondent should attempt to deter me from acting by threats of action for damages and accusations of bias which are without substance.”

As Dyson LJ said in the Court of Appeal, Mr Biscoe showed a “resolute refusal to succumb to some rather crude bullying”. Had he done otherwise, it is arguable that one of the parties may have used the letter against him and sought to argue that he was biased, that he had closed his mind against them. However, it would be a bit rich if a party was able to profit from an allegation of adjudicator bias founded on a strategy that party followed in order to provoke the adjudicator in the first place.

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