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Determining whether the adjudicator is biased

I recently wrote about being an adjudicator at a mock adjudication hosted by Collyer Bristow. The dispute was between a contractor, Q (the referring party) and the employer, L (the responding party). Q claimed L owed it £400,000, which L denied.

This post looks at the allegation of bias, that is: was there a risk of bias because of an alleged relationship between the adjudicator and Mr Jones, an employee of the referring party? (Last time I dealt with the no contract point.)

What is the test for bias?

There is a fundamental tenet of English law that no-one can be a judge in their own cause. Therefore, if an adjudicator has an interest, he shouldn’t proceed with an adjudication. But how do you define what an interest is?

Having an actual interest is easy to spot and it goes without saying that the adjudicator should resign (or decline the appointment) in those circumstances. What is more difficult is where there is no actual interest, simply an appearance of bias. Even then, what may look like bias to one individual, may not to another.

Lord Phillips set out the test for bias in Re Medicaments:

“The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

How did I deal with this in the mock adjudication?

I had been at school with Mr Jones, had met him socially 2 or 3 times since and had received “gushing praise” in his letter to the adjudicator nominating body (ANB) requesting my appointment. Mr Jones had written:

“…his immense expertise and experience as an adjudicator in deciding disputes of just this type and size. He is without a doubt a giant amongst adjudicators and I can think of no-one I would rather have as an adjudicator on this, or indeed any, dispute”.

At first blush, this may not look like anything and may not give rise to either actual or an appearance of bias. However, in deciding whether there is actual or an appearance of bias, I have to divorce myself from the situation and look at the facts as others would. I also have to consider the balance of convenience of the parties. The earlier the allegation of bias is raised, the more likely I am to resign, when the cost to the parties is less.

In the mock adjudication, on the one hand, I felt there was probably enough of a connection with Mr Jones to consider resigning and I was particularly swayed by the letter to the ANB. But, on the other hand, the allegation of bias had been raised late in the day, after both parties had already incurred considerable expenses in preparing submissions and attending the hearing. In this example, I believe the balance of convenience was against me resigning. Interestingly, on a show of hands from the audience, the room was split roughly 50:50.

Practical tips for the responding party

  • The challenge should be made as soon as the responding party is aware of the circumstances that give rise to the challenge. Any delay may result in the adjudicator continuing with the reference.
  • The letter should be sent to the adjudicator and the referring party. I am likely to invite submissions so the matter can be dealt with urgently.

and how could the referring party have avoided this?

  • By not writing this type of letter to the ANB. It is counter-productive as it suggests a relationship where none may exist.
  • By providing a selection of names to the ANB, with reasons. If the referring party names only one individual, following the decision in Makers v Camden, the ANB may be discouraged from appointing that individual.

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