Why adjudicators need freedom from disciplinary threat

Last September, the RIBA dropped a note to the members of its dispute nominating panel. It was a “sign up here” jobby requiring its approved arbitrators, adjudicators and the like to agree a new code of conduct and disciplinary procedures. My dad had a stock phrase for such stuff; he’d say “this will get their goat”. It did. Some RIBA arbitrators and adjudicators, those who are not frightened by the RIBA, told it where to stick its bright ideas. Fair dos to the RIBA, though: it is having another think.

Some arbitrators, adjudicators and the like couldn’t give a monkey’s about institutional disciplinary bumf: criticism, insult or a threat by a party to an institution is water off a duck’s back. Complaints about an adjudicator have no impact on some. Ah, my old dad would say, “no effect on some”. But now then, what about the “some” it does affect? (And what about those who don’t know it has affected them?) 

In any case, what is that possible effect on some? Oh, that’s an easy answer… it makes them scaredy-cats. They become very good at looking over their shoulder and guarding their behind. Some deliberately decide disputes to avoid trouble for themselves. Some don’t know they’re doing it. Others bring the problem to the front of their mind, confront it and beat it. 

Put bluntly, the backdrop of disciplinary proceedings or institutional sanctions is highly dangerous. And we don’t know who it affects among the folk who adjudicate disputes. If just one in 20 adjudicators are scared of disciplinary proceedings – and the other 19 don’t give a damn – then the procedure still must be firmly kicked out. It only needs one to be “some”.

Adjudicators and the like are unable to properly do the job, unable to be truly independent, when a complaints process may deprive them of their livelihood

What’s more, that one in 20 is biased in law… even if it is unwittingly, subconsciously, that they trim and tailor their decisions. If you were to lose out because of a tailored award, you would be peeved. And if that behaviour is the result of a background of intimidation by disciplinary rules and procedures, then a kicking is deserved in the bottom of the institution that imposes these rules. The adjudicator is doing the job on the institution’s terms. Let me tell you this: the institution will never, ever detect which of its dispute panel members are scared stiff of complaints. Each and every member will swear blind they’re not one jot troubled by institutional complaints. That’s a fib – for some.

The Supreme Court case of Halliburton vs Chubb [2020] rings bells. It considers the impartiality and independence of arbitrators. The commentary, in my view, applies to any person involved in dispute resolution where independence is the cornerstone of the system. The test for bias is “whether the fair minded and informed observer having considered the facts would conclude that there was a real possibility the tribunal was biased”. 

Those persons appointed by institutions to adjudicate disputes are especially vulnerable when an appointing institution can impose a penalty for what it says has gone wrong. Halliburton notes: “Nomination as an arbitrator gives the arbitrator financial benefit. There are those practitioners whose livelihood depends to a significant degree on acting as arbitrator.” 

It surprises no one when a losing party becomes spiteful, even vengeful, and demands that this adjudicating tribunal is never again blessed by an institutional appointment. Halliburton pipes up about anxious arbitrators or adjudicators “taking an interest in avoiding action which would alienate the parties to an arbitration such as being reluctant to take assertive case management decisions against the wishes of the party’s legal teams, who are presenting their clients’ cases”. Take my word for it, there is a real temptation not to issue robust and correct orders to the parties as to procedure, without giving thought to it being added to the shopping-trolley of complaints. 

It is so true to say that adjudicators and the like are unable to properly do the job, unable to be truly independent, when a complaint process may deprive them of their livelihood. If that is so, abandon the complaints process or use complaints as feedback and make sure the institution has no hint of patronage, by bringing in security of tenure – that security makes the world of difference.

As for institutional involvement, beware what has just happened to the Solicitors Regulation Department (SRB). It received a complaint about a solicitor trying to stifle a journalist writing about the solicitor’s client, saw merit in the complaint and commenced institutional disciplinary proceedings against the solicitor. 

That tribunal charged the solicitor with professional misconduct and lack of integrity; and found it proved. The tribunal fined him £50,000 – and with costs of £260,000 on top, to be paid to the SRB. The solicitor appealed, and the High Court held that the SRB tribunal had insufficiently analysed and reasoned the accusations and had made errors of law. Its prosecution and result were thrown out of court. 

My message to the likes of the RIBA is to use complaints as feedback and avoid a punishment regime, especially where independence is vital – which it absolutely is to the rule of law when adjudicating a dispute. 

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple