Adjudicator Guilty of Bias – In what Circumstances might that happen?

Posted on 08/07/2017 · Posted in Adjudication

As adjudication becomes increasingly popular as a way of settling disputes, particularly in the construction industry where it is the compulsory route to dispute resolution in the UK, so too has the role of the adjudicator become increasingly under the spotlight.

While the Construction Act 1996 sets out the adjudicator’s basic duties and authority, the Scheme for Construction Contracts (England and Wales) Regulations 1998 (known as ‘the Scheme’) provides more detail and will apply in default unless the parties who prepare the notice of adjudication outline further detail on the adjudicator’s jurisdiction within the specific case. The Scheme states that the adjudicator shall “act impartially in carrying out his duties and shall do so in accordance with any relevant terms of the contract and shall reach his decision in accordance with the applicable law in relation to the contract“.

It is extremely difficult to challenge an adjudicator’s decision once it has been made at the end of the 28 day adjudication proceeding period, and can only be done if it can be proven that the adjudicator has acted outside his jurisdiction or has breached the rules of natural justice – such as shown bias towards a party or particular of the case. Natural justice requires that every party has the right to a fair hearing and to be heard by an impartial tribunal so if an adjudicator acts in breach of these rules then his or her decision will not be enforced by the courts.

For this reason it is essential to ensure that the adjudicator, as the Scheme outlines, is completely independent and unbiased towards the case – and disputing parties – that he or she is dealing with. But when is an adjudicator found guilty of bias and why might that happen?

Science is the search for truth, that is the effort to understand the world: it involves the rejection of bias, of dogma, of revelation, but not the rejection of morality.”
Linus Pauling

An adjudicator might be accused of bias if he or she undertakes any discussions in private with one or another of the disputing parties, as communication between the adjudicator and one of the parties may prompt allegations that the adjudicator is biased, which would breach the rules of natural justice as one party might not receive a fair hearing. Equally an adjudicator might be accused of bias if he or she has a previous or existing relationship with one of the disputing parties, or any financial involvement or interest in the case or with either party. During the adjudication proceeding itself an adjudicator might be accused of bias by exhibiting hostile behaviour towards a party or individual, treating the disputing parties unequally, or attacking the credibility of a witness.

However it is not just these acts in themselves that constitute bias, but the way in which they are undertaken, the test being whether a fair-minded observer would conclude that there was a real possibility that the adjudicator was biased. So it is not necessarily the fact that the adjudicator has communicated in private with one of the disputing parties that lays him or her open to accusations of bias, but rather if this conversation is not disclosed.

It is also important to remember that just because an adjudicator must have an open mind when approaching a case, this does not mean it has to be a blank one and in fact every human being by his or her nature will bring some opinion to a case. This does not ordinarily constitute bias however, as long as the adjudicator is willing and able to keep an open mind and change his or her opinions.

It is not always the case that the adjudicator’s decision becomes invalidated by procedural breach, but in several cases the courts have refused to enforce an adjudication decision if there appears to have been a breach of the rules of natural justice. It is important therefore to ensure upfront that the adjudicator has no bias towards either the case or one disputing party or another and that the adjudication process is as transparent as possible, with adjudicators disclosing anything they think could be constituted as showing bias.

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