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The performance of Arbitrators and Adjudicators
His Honour Judge Humphrey Lloyd, 19 January 2005
On 19 January 2005 the branch were privileged to hear a talk given by a leading member of the judiciary in the TCC, HHJ Humphrey Lloyd QC, on a subject of great importance to us all, i.e. the performance of arbitrators and adjudicators. The Chairman, Robin Orme introduced Judge Lloyd, making reference to some of his judgements that are often quoted, including Balfour Beatty -v- Lambeth and Sindall -v- Solland.
Judge Lloyd started his talk by focussing on the provisions of Sections 68 and 69 of the Arbitration Act 1996. He pointed out that it was often forgotten that the main object of Section 68 was to ensure that there had been no "substantial injustice". The answer to that question was often "no" even when the arbitrator had gone about things differently to the ways in which the courts may have proceeded. It was, therefore, the outcome of any irregularity that was more important than the irregularity itself. On the other hand Section 69 dealt with situations where, as the Judge put it, the arbitrator had "gone off the rails" when dealing with the law.
The talk went on to consider a wide variety of areas that are faced by arbitrators, including the issue of bias, be it actual or apparent, reference being made to Porter -v- McGill. On this important issue it was Judge Lloyd's position that the appointment should be independent in the eyes of the parties.
Judge Lloyd then went on to deal with the same subject matter insofar as it affected adjudicators. His advice was that, if an adjudicator is faced with having any knowledge of either party, no matter how remote, he should notify the parties in the first instance and invite them to respond. This is a common feature in adjudications these days with an increasing amount of representation by those also qualified to act as adjudicators or arbitrators in a transient industry. Many of us come across people we know within the industry. That, in itself, is not a problem and nor should it be. However, in order to ensure that the principles of transparency and openness are maintained the advice of Judge Lloyd is the way to deal with such situations.
Towards the end of his talk Judge Lloyd had some helpful advice with regards to the writing of awards and decisions. They should be written so that any court asked to review the decision or award can understand it and its reasons without recourse to other documents, such as submissions or evidence. Therefore the key points should be set out in full in the text rather than by reference only to the document in which they are found.
At then end of the talk John Burgess gave a thought-provoking vote of thanks on behalf of those present.
It is clearly impossible to set out all the key points covered in the very comprehensive talk given by Judge Lloyd. The full benefit could only be obtained by those who attended the meeting. It remains a great disappointment that, with a branch membership approaching 800, less than 35 turned out to hear such an eminent speaker talking on such an important topic.