Fileturn v Royal Garden Hotel [2010] EWHC 1736 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

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Where an adjudicator has previously worked closely with the claims consultants representing a party to adjudication, this did not of itself give rise to a triable issue of apparent bias. There was one test for apparent bias and that was whether an informed and fair-minded observer, having considered the relevant facts, would conclude that there was a real possibility that the adjudicator was biased.

Technology and Construction Court, Mr Justice Edwards-Stuart


The claimant (“Fileturn”) sought to enforce an adjudicator’s decision in the sum of about £220k (plus VAT) by way of summary judgment against the defendant (“RGH”). The application was resisted on the grounds of apparent bias on the part of the Adjudicator. Fileturn had been represented in the adjudication by S, a director of Alway Associates (“Alway”). Between March 2001 and February 2004, the Adjudicator had been a director Alway. During this period, S had also been a director. S and the Adjudicator were based at different offices. They had their own separate caseloads although they did work together on one or two occasions during 2002/2003. They met socially only at Alway’s annual summer function. In the ten years prior to this case the Adjudicator had conducted around 250 adjudications. In those adjudications Alway had acted for one of the parties on about 10 occasions, in two of which S had been the advocate. S had made applications for the appointment of an adjudicator on approximately 150 occasions; on about 12 occasions he had requested the appointment of the Adjudicator in the case at hand. On only one of these 12 occasions (the present case) had the Adjudicator in fact been appointed after being specifically requested by S. No one in Alway apart from S had ever requested the Adjudicator to act as an adjudicator.


The Court considered whether RGH had a real prospect of successfully defending the claim to enforce the decision on the grounds of the apparent bias of the Adjudicator.


The Court held:

  • The test for apparent bias is whether an informed and fair-minded observer, having considered the relevant facts, would conclude that there was a real possibility that the Adjudicator was biased.
  • Having regard to the following factors, RGH had no real prospect of succeeding at trial on its argument based on apparent bias:
  • Although S had requested the appointment of the Adjudicator on 12 occasions, there was no evidence that the Adjudicator knew this (as he was only in fact appointed on one occasion, and the appointing bodies would not have informed him of the unsuccessful requests made by S).
  • There had been no significant contact between the Adjudicator and S for a number of years prior to the appointment, other than on one previous occasion in which S had appeared as an advocate before the Adjudicator.
  • Although the Adjudicator had had a reasonably close professional relationship with S during their time working together, there was nothing to suggest any association between the two outside of their professional activities, either then or since.
  • The fact that 90-95% of adjudications conducted by the adjudicator did not involve Alway suggested that the Adjudicator was not reliant on that firm for his practice.
  • There was no suggestion that the Adjudicator had any special knowledge of or connection with either of the parties at the time of the adjudication in the present case.
  • The Court rejected (in trenchant terms) the argument that this must be an obvious case of bias because a reputable commercial organisation, with the support of its legal advisers, was prepared to assert that this was a case of apparent bias.
  • In court proceedings, there is no inherent objection to the fact that the legal representatives of one or more of the parties are well known to the judge. Judges are assumed to be trustworthy and to understand that they should approach every case with an open mind. The same applies to adjudicators, who are almost always professional persons.
  • The argument that the decision was unenforceable because the Adjudicator should have concluded that there was a real (as opposed to fanciful) prospect of an objection to his appointment, but, by not disclosing the relevant material, had deprived RGH of the opportunity to object to his continuing with the reference was wholly misconceived.

Accordingly, the decision of the adjudicator would be enforced by way of summary judgment.

This summary was provided by CMS Cameron McKenna LLP.

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