Glencot Development and Design Co Ltd -v- Ben Barrett & Son (Contractors) Ltd
The test to be applied to all cases concerning 'apparent' bias of adjudicators was whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of danger that the tribunal was biased
13 February, 2001
A dispute arose between the sub-contractor and the sub-sub-contractor and an adjudicator was appointed. The parties agreed on a valuation of the work and the adjudicator was asked to and did mediate the attempt to finalise the agreement and told the parties that if negotiations broke down, he would resume his role as adjudicator. The negotiations did break down and the adjudicator made a decision in favour of the sub-sub-contractor which issued court enforcement proceedings. The sub-contractor resisted the application on the ground that the adjudicator's participation in the negotiations meant that he was no longer impartial and should have withdrawn with the result that his decision was invalid. Judge LLoyd held that the test to be applied to all cases concerning ?apparent? (rather than ?actual?) bias of adjudicators was that of Lord Goff in R v Gough (1993) as modified by the Court of Appeal in Director General of Fair Trading v Proprietary Association (2000). This was whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or danger (?possibility? and ?danger? meaning the same thing in this context) that the tribunal was biased. The words ?impartial? and ?impartially? as used in the Construction Act 1996 had the same meaning as they had at common law or in article 6 of the Human Rights Convention as applied by the Human Rights Act 1998 insofar as whilst an adjudicator might not be a classic judicial tribunal, an adjudication was not conducted in public and the effect of any decision was ultimately reversible. It was, however, accepted that an adjudicator had to conduct the proceedings in accordance with the rules of natural justice or as fairly as the limitations imposed by Parliament permitted. Applying this test, the decision should not be enforced by the court on the basis that the sub-contractor had good prospects of establishing its defence that the adjudicator could no longer be regarded as impartial in the light of his participation of the mediation process. Advice Note An adjudicator must be extremely careful in his conduct of the adjudication not to be regarded as apparently biased. In particular he must not engage in any process other than the adjudication process itself.