Mirror, mirror on the wall

If there is anything about the English legal system that excites the interest of our courts more than anything else, it is fairness; or rather, unfairness. Unfairness in the decision-making process will mean that there is a serious risk that the decision or award or judgment is void. Mind you, it all depends what is meant by unfairness. Find unfairness in a trial or in arbitration or even in adjudication, and you will have put a huge spoke in the opponent's wheel. And if you have just had a decision in arbitration or adjudication that irks you, one of the weapons your lawyer will seek to deploy will be labelled unfairness. If you are the happy party, you will want to show no unfairness. And, if you are the arbitrator or adjudicator, you will want to be squeaky clean, untainted by the accusation of unfairness.

Snag is, Mr Arbitrator and Mr Adjudicator, you don't have to be unfair to be unfair. Bias, or want of impartiality, or want of independence need not be actual bias, etc. No, it need only be the appearance of bias. The RICS, for example, when appointing the arbitrator or adjudicator insists that the potential candidate signs a declaration about past or present connections with either party. But there are many more subtle "connections", which have begun to attract the attention of the courts.

The one I want to tell you about began with an ordinary matter when a Mr Lawal complained about his previous employer refusing to give him a reference for his next job. He lost. But he then complained that the three-man tribunal was unfairly compiled. Seemingly, the barrister who appeared for the employer sometimes sat as the barrister chairman on the tribunal. This meant that he knew one of the other members of the Lawal tribunal because they sometimes made up the tribunal in other cases.

He took that complaint to the Employment Appeal Court on the basis that there was the appearance of unfairness or bias, since the lay member of the tribunal could possibly be influenced by the fact that his previous colleague was now the barrister for one of the parties. Tosh, said the appeal tribunal. The people who make up tribunals are made of sterner stuff. Selected for their personal characteristics, especially independence; they would not be influenced by a previous tribunal chairman acting this time as counsel. But Mr Lawal was nothing if not tenacious. He wouldn't have it. So he went from the appeal tribunal to the High Court of Appeal.

To suggest the tribunal member might be biased was based on an unfounded and condescending assumption about a layperson’s abilities

The case came before the most senior civil judge, the Master of the Rolls, and two Appeal Court judges. Tosh, said that court to Mr Lawal. People sitting on tribunals were blessed with the qualities of good analysis, comprehension and judgment, commanded trust and respect from colleagues, had impartiality and independence and had been very carefully selected. To suggest the tribunal member might be disposed to think this or that biased way was a remote possibility based on an unfounded, and some might think, condescending assumption about a layperson's abilities. Ouch. Mr Lawal was out on his ear.

But this fellow wasn't so easily done for. He took the complaint to the House of Lords. Five Law Lords decided that all the previous judges had been wrong. The test for fairness was all to do with someone called "the fair-minded and informed observer". This person was a reasonable member of the public who was neither complacent nor unduly sensitive or suspicious. Would this person conclude that there was, in this case, a real possibility that the tribunal was biased? Notice it doesn't ask if it is biased, it only asks if there is a "possibility". Oh, so subtle.