Fileturn Ltd v Royal Garden Hotel Ltd
Technology and Construction Court
13 July 2010
The claimant applied for summary judgment to enforce the adjudicator’s decision in its favour. The defendant opposed the application on the ground that the adjudicator was apparently biased because of the pre-existing relationship between the adjudicator and the claimant. It was common ground that the test for apparent bias was whether the informed and fair-minded observer, having considered the relevant facts, would conclude that there was a real possibility that the adjudicator was biased. One of the defendant’s contentions was that a different (and less stringent) test for apparent bias should in any event be applied because it had not been given the opportunity to waive its complaint of such bias by the disclosure which should have been given at the time of the adjudication by the director of the claimant’s firm of claims consultants and by the adjudicator of the facts relevant to that involvement. The defendant submitted in support of its contention that (i) The rights to have a tribunal free from apparent bias and to waive any objection about apparent bias that might subsequently be made were different conceptually (ii) The test for whether a party should have been afforded the right to waive any objection based on apparent bias was different (and weaker) than the test for establishing apparent bias itself and (iii) All that was required was that the case was a "borderline" one and there was a real (as opposed to fanciful) prospect of an objection being taken that the circumstances gave rise to a risk of apparent bias on the part of the adjudicator.
Edwards-Stuart J rejected this contention on the basis that if the contention had been correct, it would have meant, contrary to the law on the subject, that the question of apparent bias, would not fall to be determined if the judge or tribunal was aware of material facts relevant to whether he or she should hear the case but did not disclose them to the parties. Instead that question would only fall to be determined if the judge or tribunal was unaware of or had forgotten such facts and had therefore not disclosed them.