22 February 2016Print This Post

High Court demands removal of barrister arbitrator over risk of “apparent bias”

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Hamblen J: Mr Bingham showed “lack of awareness”

A High Court judge has demanded that a barrister resign as the arbitrator of a construction dispute because of “the real possibility of apparent bias”.

Mr Justice Hamblen said the “starting point” was the relationship between Anthony Bingham, an experienced arbitrator, barrister and chartered surveyor at 3 Paper Buildings, and the defendant in the main dispute, claims consultants Knowles.

Hamblen J said the relationship had been disclosed by the evidence presented by the claimant, construction company Cofely.

This revealed that Mr Bingham had acted as arbitrator or adjudicator 25 times in the past three years in cases involving Knowles, either as a party or as a representative, and in 18 of those cases the barrister ruled in favour of Knowles or its client.

However, Hamblen J found that “of most significance” in his relationship with Knowles was that over the previous three years, 18% of Mr Bingham’s appointments and 25% of his income as arbitrator/adjudicator derived from cases involving the company.

Hamblen J went on: “Mr Bingham’s attitude to this, as made clear at the hearing and as maintained in his statement, is that this is irrelevant as all these appointments were made by an appointing body rather than Knowles directly.

“On this logic even if all his income derived from cases involving Knowles, there would still be no cause for concern.”

Hamblen J said that the Chartered Institute of Arbitrators’ acceptance of nomination form called for the disclosure of ‘any involvement, however remote’ with either party over the last five years.

“Acting as arbitrator/adjudicator in cases in which Knowles is a party or a representative of a party is a form of involvement.

“Further, the evidence shows that even though Knowles does not appoint an arbitrator/adjudicator directly, it is able to influence and does influence such appointments, both positively and negatively.”

The court heard in Cofely v Bingham and another [2016] EWHC 240 (Comm), that the construction company sought an order that Mr Bingham be removed as arbitrator under section 24(1)(a) of the Arbitration Act 1996 on the grounds of “justifiable doubts as to his impartiality”, involving “apparent” rather than “actual” bias.

The defendants disputed the existence of circumstances giving rise to justifiable doubts and questioned whether Cofely had the right to raise the objection under the Act.

Hamblen J said concerns raised by evidence about the relationship between Mr Bingham and Knowles were “heightened” by his response to Cofely’s enquiries and his witness statement.

“This shows that even now Mr Bingham does not recognise the relevance of the relationship information or the need for any disclosure.”

The judge said this “lack of awareness” demonstrated a “lack of objectivity and an increased risk of unconscious bias.”

He recounted a hearing Mr Bingham called to address the concerns raised by Cofley. While this was reasonable, the way the meeting “instead became a means by which Mr Bingham would arrive at a ‘ruling’ on apparent bias” was not.

Hamblen J said: “Mr Bingham gave the impression that he was seeking to pre-empt that process by pressurising Cofely into acknowledging that there was no issue to be explored.

“Of further concern is the manner in which this was done at the hearing. Excerpts of the transcript… illustrate how Mr Bingham was effectively cross-examining Cofely’s counsel and doing so aggressively and in a hostile manner.

“Although counsel had explained that all that was being sought at this stage was information and that Cofely was not yet in a position to state what it ultimate stance was to be, Mr Bingham continually pressed him to state its position and sought to demonstrate at the hearing and through his “ruling” that there were no grounds for concern. I agree with Cofely that Mr Bingham was thereby descending into the arena in an inappropriate manner.”

The judge said Mr Bingham’s witness statement suggested he regarded Cofely’s requests for information as “assertive, challenging, perhaps even bullying behaviour”.

Hamblen J said the reality was that Cofely’s inquiries were “reasonably made and expressed”, particularly in seeking a statement of the proportion of appointments and income Mr Bingham had derived from Knowles-related cases in the last three years.

The judge concluded that Cofely had established grounds for the removal of Mr Bingham as arbitrator under the Act.

He ruled that if Mr Bingham did not resign, “an order for removal will accordingly be made”.

By Nick Hilborne

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