Guilt by association

A few years back, in a preliminary hearing, a judge remarked of one of the parties, “I do not trust him further than I can throw him.” Perhaps unsurprisingly, that party formed the view that he might not get a fair hearing at the trial of the action, and asked the Court of Appeal to remove the judge from the case. The court did so. A fair-minded and informed observer of the proceedings, they said, might well conclude that there was a real possibility that a decision made by the judge could be biased.

Not all cases of bias that come before the courts are as clear cut as this, and very few of them involve any allegation of actual bias. But the law is just as concerned with apparent bias. Justice must not only be done, but must be seen to be done. A recent Court of Appeal decision provides a useful contrast between the rules as they are applied to judges on the one hand, and to arbitrators and adjudicators on the other.

In Smith vs Kvaerner Cementation Foundation Ltd, Mr Smith had suffered serious injuries in a road accident. He brought proceedings against KCF, the owner of the car in which he had been driven. The judge dismissed Smith’s claim.

Smith later felt that there were two reasons why the case should not have been tried by this particular judge. First, he was head of the same set of chambers to which KCF’s barrister belonged. Second, the judge had acted for companies in the same group as KCF, and in fact was still acting for one such company at the time of the trial (he was a part-time judge and had a continuing professional practice).

The Court of Appeal made clear that a judge is not debarred from deciding a case merely because one of the advocates is from his set of chambers. This was no great surprise. Judges frequently hear cases where one of the advocates is a chambers member. The same point will apply in principle in arbitrations. But the position is likely to be different where a solicitor or other construction professional is deciding a case (in an arbitration, for example) and where his own firm acts for one of the parties. Solicitors and other professional partnerships share profits in a way that barristers do not. The court did accept however, that changes in the way that barristers’ chambers were financed, and the impact of conditional fee arrangements, might make a difference in future, in some cases at least.

Judges frequently hear cases where one of the advocates is a chambers member

Smith had more success on the second ground of his appeal. It was a clear principle of law that a judge could not act in a case involving a client where he was also acting for other companies within that client group.

The position may again be different for solicitors or other professionals in arbitrations, depending on the facts. In one of a group of cases heard together under the name “Locabail” some years ago, one party argued that a solicitor should not have sat as a deputy judge in a case where his firm (a large London one) had previously acted against her husband’s company in a commercial matter. It was accepted here that the judge simply did not know that his firm had acted in the matter; and in any case, it could not be suggested that there was any likelihood of bias. A losing contractor should therefore not assume that it will be able to get an arbitration decision overturned where, for example, it later discovers that the arbitrator’s law firm has been acting for companies related to the employer.

But things would be very different if it were the arbitrator who was involved in the employer’s matter. That would then be similar to the situation in Smith’s case above.

Do the above points apply to adjudication? In principle, yes. The rule against bias affects adjudicators as much as any other decision-making person. But the courts are also aware of the fact that losing parties in adjudications often try to use any legal argument that might be available in order to avoid paying up on a decision.

Those who want to argue that a decision should not be enforced because of bias, therefore, should be sure that their application does not smack of opportunism. They should also air concerns to the adjudicator as soon as they can.