Earlier this year, I raised the possibility of adjudicator-bias in the context of adjudicator’s being paid (or not) following Lord Dyson’s judgment in PC Harrington Contractors Ltd v Systech International Ltd. What I wondered was whether it was arguable (or at least would be argued by some) that being paid at the end of the adjudication process would influence an adjudicator in favour of a particular party when he was making his decision.
While I’m unaware of this proposition being tested by the courts yet, it is possible that we will see the argument in enforcement proceedings in the not-too-distant future. Meanwhile, until then, another case concerning allegations of bias caught my eye recently. This time, it was a judge being asked to recuse himself for bias.
Mengiste v Endowment Fund for the Rehabilitation of Tigray and others
I’d be surprised if many construction practitioners saw this case, since the substantive issue was about whether proceedings in the English High Court between Ethiopian parties over a manufacturing dispute in Ethiopia should be stayed. However, two subsequent judgments dealt with issues related to the inadequate evidence of the claimant’s expert and the application for recusal.
The reason the judge, Peter Smith J, was asked to recuse himself was based on his criticisms of the claimant’s solicitors in allowing the expert evidence in the form it was given:
“The poorness of [the claimant’s expert’s] report is demonstrated by what leading counsel for the claimants said in para.35 of his closing, which says:
‘While neither expert may have been up to the quality that the courts have come to expect of experts in this jurisdiction, of the two, it is submitted that Mr. Jones gave the better expert evidence, and is to be preferred where there is disagreement between the two experts.’
That submission, in my view, was breath-taking in its total failure to understand the inadequacy of the performance of [the claimant’s expert], both in his written and oral testimony. It is, to adopt a phrase which has been used regularly in this case, ‘Alice in Wonderland’ to believe with any credible basis that [the claimant’s expert’s] evidence was to be preferred to that of [the defendant’s expert]. No one, in my view, objectively speaking, having seen the evidence, could possibly conclude that [the claimant’s expert] was to be preferred to [the defendant’s expert], and I rejected that.
…it became clear to me during the course of his evidence that, whilst [the claimant’s expert] struggled, in my view, to give his evidence honestly, he was having difficulties in presenting coherent evidence because he was blissfully unaware of his duties and responsibilities as an expert, as required by CPR 35. Indeed, his performance was so bad that I had concerns about it from his point of view. During his cross-examination…, I raised with him as to whether he was aware of the consequences of the finding that, if his evidence was given either grossly negligently or recklessly, there might be certain consequences.”
Harsh words indeed for any expert.
Application for recusal
I thought the judge’s approach to the recusal application was interesting, not least because of his explanation as to why a recusal application is difficult for a judge to deal with:
- The application involves criticism of a judge, which the judge has to consider.
- He has no advocate to argue his case for him.
- It is debatable whether he should argue his own case.
- The Court of Appeal has not set out clear guidance on how judges should react to recusal applications.
- The other parties to the proceedings are left wondering whether to participate in the recusal application, whether to be seen to come out in favour of the judge or not.
Here, the judge decided that he did not have “proper and timeous notice” of the application to be able to consider it within a reasonable time. He also asked himself two rhetorical questions about whether a judge should recuse himself:
- Had he shown actual bias against the party seeking his recusal?
- Would a fair-minded observer conclude there was a real possibility of bias?
He relied on Lord Bingham’s judgment in Locabail v Bayfield, where it was said:
“The mere fact that a judge… had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection… if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal.”
Applying this to the facts in Mengiste, the judge decided that criticism of itself was an insufficient ground for recusal.
Comparing recusal to a challenge to an adjudicator’s jurisdiction
I thought the parallels with challenges to an adjudicator’s jurisdiction were stark.
Adjudicators often face challenges, either at the outset, when the challenge may be to their appointment, or later in the process. It may even arise when one party is seeking to enforce their decision.
At the outset, the challenge is often based on a conflict of interests, rather than allegations of actual bias, relying on the adjudicator’s previous involvement with one of the parties. This is what happened in Fileturn v Royal Garden Hotel, which I blogged about a couple of years ago. Making a decision about whether to accept or continue with the appointment as an adjudicator in this situation needs care, otherwise you can end up offending the rules of natural justice by becoming a judge in your own cause (just like Peter Smith J noted in Mengiste). However, there is guidance out there to help adjudicators with conflicts of interest (such as the RICS’ professional guidance).
However, it can be more difficult for an adjudicator to remain objective when he is challenged as to his conduct of the adjudication in some way. In these circumstances, adjudicators probably don’t have the time to refer the matter to a third party and, even if they did, who would pay for that and what would happen if the third party agreed that the adjudicator was biased? While I’ve heard it suggested that maybe we could bring in a super fast (ad hoc) arbitrator to decide the point, I’m not sure how helpful that would really be.
Perhaps there is no answer. Instead, I’ll leave you with another gem from Peter Smith J:
“In this case, there was no doubt that [the claimant’s expert] was one of the worst expert witnesses ever to give evidence before me.”