Although I have never done so myself, it is clearly acceptable for an adjudicator to ask parties to comment on a case or other point of law that neither has mentioned in their submissions. It is also clearly acceptable for an adjudicator to ask parties to expand on and/or clarify contentions made in their submissions, and this is something I do regularly. Indeed, I think that it is essential for adjudicators to ask parties to clarify points where they are uncertain as to the meaning of parts of the submissions. Otherwise, how can an adjudicator ensure that the process is fair? This is particularly so given that the vast majority of adjudications these days proceed on a documents-only basis.
It was with this is mind that I read with interest Turner J’s judgment in Miley v Friends Life Ltd. Turner J was dealing with the defendant’s application to recuse himself on the grounds of apparent bias. It arose following an email he had sent to the parties identifying issues that he wanted assistance on.
Miley v Friends Life Ltd
This case was all about a claim under an income protection policy, which the defendant had stopped paying because it thought the claimant was significantly overstating the symptoms preventing him from working. The claimant had been receiving just under £92,500 per annum from the policy.
During the claimant’s cross-examination at trial, the defendant alleged that he had failed to disclose additional income. In its closing submissions, the defendant said the claimant’s failure had no innocent explanation. The claimant’s further written submissions stated that if there was an error (which he denied), it had been innocent. The parties also disagreed regarding the relevance of innocence in interpreting the income protection policy, whereby the policy was void if the claimant made an untrue statement of a material fact (clause 5(1)(b)).
A further hearing was proposed to deal with these issues.
In April 2017, the judge emailed the parties identifying issues on which he thought further submissions might be helpful, including the hypothetical consequences of a finding that the claimant had innocently omitted material. This email was sent at the express invitation of the defendant’s counsel, who had written to the judge in the following terms:
“If at any point prior to the hearing your Lordship felt able to give some indication of the broad areas or issues where the Court would appreciate further argument, this may enable us all to prepare more efficiently and effectively, and if appropriate, to do some further research beforehand…”
In June 2017, in further closing submissions, the defendant invited the judge to recuse himself on the ground of apparent bias. Four grounds were advanced, all of which the judge rejected. The judge also made some interesting preliminary points and passed “adverse comment” regarding the defendant’s delay in making the recusal application.
Recusal on ground of apparent bias
Turner J reminded us that the law in this area in uncontroversial and that is comes down to what the “fair-minded and informed observer” might conclude (Porter v Magill). He also stated the obvious (his words, not mine) when he said that a judge considering a recusal invitation must:
“… be very careful not to allow any personal considerations whatsoever to contaminate his conclusions. Nevertheless, this should not preclude such a judge from acting with the same level of robustness and proportionate scepticism, where this is necessary, as he would approach any other application. To proceed otherwise would be unfairly to prejudice the other side out of an undue sensitivity to the perception that such robustness may be wrongly attributed to the personal feelings of the judge as opposed to the legitimate demands of firm management with the aim of applying the overriding objective.”
Application was not made promptly
Turner J considered that the application had not been made promptly (his email had been sent more than two months earlier) and the defendant’s explanation for the delay was “as unhelpful as it was uninformative”. He reminded us that parties have a duty to help the court further the overriding objective. They are also required to make applications “as soon as it becomes apparent that it is necessary or desirable” to do so.
I guess the timetable of an adjudication renders these observations otiose, but they are nonetheless important to bear in mind. We have all seen cases where a party failed to raise a jurisdictional challenge when it first arose, and then lost the right to use that challenge because of the passage of time (or because it failed to reserve its right to challenge in later proceedings).
Back to the recusal application
The first ground that Turner J had to deal with was whether he had attempted to pursue a legal analysis that limited clause 5.1(b) to “benefit the Claimant alone”, even though the claimant had disavowed that interpretation.
Turner J noted that a judge:
“… is not required to turn a blind eye to the potential points of law which may not have been fully or adequately considered by the parties.”
He also referred to the observations of the President of the Supreme Court, Lord Neuberger, in his paper, The Role of the Judge: Umpire in a contest, Seeker of the Truth or Something in Between:
“When it comes to points of law, it appears to me that, if a judge thinks that an argument, which has not been raised, could be raised, the right thing to do is normally to raise it, shortly and neutrally, as soon as possible with the parties. It should not be raised on the basis that it is the obvious answer to the whole case and the parties are idiots for not having seen it. That attitude smacks strongly of the judicial mind having been made up – and it carries the risk of judicial humiliation if the point turns out to be bad. Sometimes, however, it may be better to keep quiet – eg if it is pretty plain that, in order to enable the advocates to deal with the point, the hearing would have to be unacceptably adjourned. Again, a judge must be very careful of being prejudiced in favour of a point just because he raised it and the parties missed it.”
Ground one was rejected.
The second ground was all about pre-determination. Again it was rejected. Not only was the judge’s request prefaced by “hypothetical”, it was sent after all the evidence in the case had been heard:
“Where a complaint is made that a judge has ‘pre-determined’ an issue, the question must arise: ‘Pre what? What further evidence or submissions ought the judge to have waited to hear before proceeding to determination?'”
In his recent paper, Arbitrators and Adjudicators: Impartiality and an Open Mind, Edwards-Stuart J distinguished between bias and pre-determination. He also said that the correct time to determine the pre-determination point was when the case had been decided, and not when the preliminary view or similar had been issued.
So the question is, to what extent can and should adjudicators ask questions of the type Turner J did?
In my view, the important point is that, regardless of whether the question is raising a new point of law or constitutes an expansion or clarification of parts of the submissions, the questions should be neutral, and not contain any suggestion of what the adjudicator’s view of the answer might be. For example, imagine that the responding party quotes a contract clause in its response, but does not provide any submissions as to the relevance of this clause. The adjudicator might consider the clause to be highly germane, but should avoid asking the question in the following manner:
“I note that the Responding Party has quoted clause 4.10 of the contract in the Response, but has not provided any submissions as to the relevance of this clause. I consider that a great deal turns on this clause, and that, based on the facts of the case, the Referring Party’s claim could fail in its entirety as a result of it not complying with clause 4.10. Does the Responding Party agree?”
I have rather exaggerated the point, but you get my drift. To borrow from Lord Neuberger, this type of question:
“… smacks strongly of the judicial mind having been made up – and it carries the risk of judicial humiliation if the point turns out to be bad.”
A much more appropriate way to word the question might be:
“I note that the Responding Party has quoted clause 4.10 of the contract in the Response, but has not provided any submissions on this clause. I ask the Responding Party to confirm whether it considers that clause 4.10 is relevant to the dispute and, if so, how it is relevant.”
A further very important point is that, once a party has addressed the question(s), the other party must also be given the opportunity of commenting.
It is also worth reminding ourselves that the courts have also endorsed adjudicators issuing their preliminary views on matters in dispute, as we saw in Jackson LJ’s judgment in Lanes Group plc v Galliford Try Infrastructure Ltd (t/a Galliford Try Rail), where he said:
“There is nothing objectionable in a judge setting out his or her provisional view at an early stage of proceedings, so that the parties have an opportunity to correct any errors in the judge’s thinking or to concentrate on matters which appear to be influencing the judge. Of course, it is unacceptable if the judge reaches a final decision before he is in possession of all relevant evidence and arguments which the parties wish to put before him. There is, however, a clear distinction between (a) reaching a final decision prematurely and (b) reaching a provisional view which is disclosed for the assistance of the parties.”
However, it is important to note that the RICS’ Guidance Note on Surveyors Acting as Adjudicators states that draft decisions should not be issued to the parties.