Practical Law

I was reading an old case recently where one side was represented in court by a very eminent QC, while the other side was using junior counsel. Maybe it was just me, but I couldn’t help noticing that the judge, almost without exception, accepted the senior counsel’s points while dismissing the junior counsel’s points. Now, I’ve no doubt that the judge wasn’t biased and the senior counsel’s points were simply more persuasive, but I wonder whether the judge unwittingly gave more weight to them?

Litigants are clearly conscious of this. Most of you reading this will have been involved in litigation where, as soon as one side has instructed a QC, the other side has clearly felt obliged to do the same, regardless that their junior counsel might be doing a fine job.

Such unwitting bias wouldn’t necessarily constitute apparent bias (as stated by Lord Hope in Porter v Magill [2002] 2 AC 357), but does such unwitting bias nevertheless exist? This got me thinking about whether this type of unwitting bias might exist in adjudication.

Unwitting bias of the tribunal

One of the beauties of adjudication is that, if a party decides to appoint a representative, that representative can be from any background, be that the legal profession, surveying, engineering and so on. That party can even represent itself.

But if one side is represented by a small firm of claims consultants and the other side a “magic circle” firm of solicitors, will the adjudicator unwittingly give more weight to the submissions from the “magic circle” firm? Well, the adjudicator certainly should not, but I’ve seen some decisions where the adjudicator clearly has done so (unwittingly or otherwise).

I also think that parties are alive to this and, in adjudication, they are adopting similar tactics to court litigation. For example, I’ve been the adjudicator on a couple of occasions where the responding party has clearly only appointed counsel because the referring party did so.

Other types of unwitting bias

This all got me thinking about other types of unwitting bias that just might crop up in adjudication. A few situations came to mind:

• Some solicitors firms do a great deal more adjudication work than others. If an adjudicator is faced with one of these “high volume” adjudication firms on one side, and a high street firm that does little adjudication work on the other, will the adjudicator unwittingly give more weight to the “high volume” firm’s submissions, knowing that they might put him forward as an adjudicator in the future?
• Some barristers sets specialise in construction (Keating Chambers, Atkin Chambers, 4 Pump Court, etc). Will the adjudicator unwittingly give more weight to a submission from a barrister from one of these sets, compared to a submission from a barrister whose set doesn’t specialise in construction?
• Some firms of solicitors and claims consultants get a reputation for running cases in particular ways, for example acting aggressively or making endless jurisdictional challenges. Others are known for making complaints against adjudicators. Can the adjudicator really put these matters fully out of his mind?
• There are several very familiar faces on the adjudication lecture circuit. If the adjudicator comes across a submission from one of these “familiar faces”, is he likely to unwittingly give it more or less weight depending on whether he knows or respects that person?

What about reverse bias?

Most adjudicators would probably admit to such factors crossing their mind. That is probably a good thing because at least the adjudicator has identified the factors and attempted to put them out of his mind before allowing them to unwittingly cloud his decision-making process.

But could this lead to “reverse bias”?

I came across a referring party once who, when told that the adjudicator had declared that he had previously undertaken consultancy work for the responding party, made no objections. His reasoning was that the adjudicator was far more likely to go out of his way to show that he was not biased, therefore leading to a favourable result for the referring party. You can make the result up for yourselves!