UK: Challenging A Judge Or Arbitrator For Bias

Last Updated: 18 January 2007
Article by Simon Robert Tissot and Lydia Hassall

The requirements for a challenge to a decision on the grounds of bias are the same irrespective of whether the challenge concerns a judge or an arbitrator. However, the approach taken by the courts is different when the challenge is to a judge rather than to an arbitrator. Both are, obviously, relevant to insurers.

Challenge to a judge

To challenge a judge the applicant must prove that the circumstances would "lead a fair minded and informed observer to conclude that there was a real possibility… that the tribunal was biased". In England and Wales there are close links between the judiciary and the Bar. The Bar Council is currently considering the propriety of advocates with conditional fee agreements appearing before a recorder from the same chambers.

If there is a real possibility of bias, the judge is disqualified from hearing the case. In Alexander Morison & Anor v AWG Group & Anor (2006), the Court of Appeal held that the judge should step aside where he was a friend of a potential witness who was associated with one of the litigants. This was not a discretionary matter.

It is open to a judge to declare his interest or connection to a case and ask the parties whether they will agree to his hearing the matter. The courts have emphasised that the party waiving any objection should be aware of all the material facts; of the consequences of the choice; and, given a fair opportunity to reach an un-pressurised decision. In Peter Smith v Kvaerner Cementation Foundations Ltd (2006), the Court of Appeal held that a decision by an appellant to allow a recorder to continue to hear the case was not made freely with knowledge of all the relevant information, and the appellant had therefore not waived his right to complain of bias.

Challenging an arbitrator

A challenge to an arbitrator in England is made under the Arbitration Act 1996. The general principles include "the fair resolution of disputes by an impartial tribunal without unnecessary delay"; s.33 imposes upon the tribunal a duty to "act fairly and impartially as between the parties".

If an arbitrator fails in his duties, a party has the right to apply to the courts to remove the arbitrator on grounds which include the existence of circumstances "that give rise to justifiable doubts as to his impartiality", or where an arbitrator has refused or failed properly to conduct the proceedings or to use all reasonable despatch in conducting the proceedings or making an award, and that "substantial injustice has been or will be caused to the applicant" (s.24). Alternatively, a party may apply to the English court (under s.68) to challenge the award on the grounds of serious irregularity which has caused or will cause substantial injustice to the applicant.

However, s.73 requires the applicant to make any such application promptly, and he may lose the right to do so if he continues to take part in the arbitration proceedings. In other words, an applicant who knows of his right to object or could have discovered it with reasonable diligence, cannot wait until the award is made before deciding whether or not it suits him to apply to challenge it.

Laker Airways Inc v FLS Aerospace Ltd (1999), confirmed that it was not necessary for a party to prove actual bias; the court asked an objective question as to whether there were circumstances which raised justifiable doubts as to the arbitrator's impartiality.

ASM Shipping Ltd of India v TTMI Ltd of England (2005), considered the position of a barrister acting as a third arbitrator. The solicitors for one of the parties had made allegations against the other party's principal witness in respect of disclosure. The barrister had recently been instructed by those solicitors in another matter in which similar allegations had been made against that same witness. The court held that the barrister should have recused himself because "the independent observer would share the same feeling of discomfort expressed by [the applicant] and concluded that there was a real possibility that the tribunal was biased" - the test for apparent bias had been made out. Although the court held that substantial injustice had been caused, by the time of making the application the tribunal had made an interim award and the applicant had taken it up. The court therefore held that the applicant had waived its right to object to the barrister's involvement in that part of the proceedings, although the barrister should not continue to sit as arbitrator going forward. More recently, the Court of Appeal held that it did not have the jurisdiction to review the decision by the judge that the applicant had waived the irregularity in the absence of any realistic argument that the decision had breached article 6 of the European Convention on Human Rights (the right to a fair trial).

In the recent decision Norbrook Laboratories v (1) Tank, (2) Moulson Chemplant Ltd (2006), the court removed an arbitrator for failing properly to conduct arbitration proceedings. The arbitrator had contacted witnesses directly but failed to inform the parties to the arbitration that he had done so and failed to keep or disclose a record of what had been said. The court held that the lack of fairness in the process led to a perception of a real possibility of bias, and so caused substantial injustice to the applicant.

In international arbitration, guidelines have been laid down as to what constitutes a conflict of interest for arbitrators, particularly by the International Bar Association. The English court will refer to them if appropriate, but the court's approach will be led by previous case law.


The courts have shown that the old maxim that justice must not only be done, but be seen to be done holds true today. The increasing number of challenges to judges and arbitrators reflects increasing sensitivity to the need for independence and impartiality.

Brit Syndicates Ltd & Ors v Grant Thornton International & Anor (2006)

This recent decision concerned cover for Grant Thornton International (‘GTI’), the not-forprofit ‘umbrella’ organisation of the international accounting practice. By an extension to the relevant professional indemnity policy, GTI was covered only for claims against it "arising from claims made against a member firm of GTI insured by the terms and conditions of this policy".

Negligence claims were made against the Italian firm of Grant Thornton (‘GT Italy’) arising from its role in Parmalat. The claim was extended to GTI, alleging control over GT Italy, even though GTI itself had no clients nor any practice of its own. Insurers avoided against GT Italy: what effect did that have on GTI’s cover?

The Court of Appeal concluded that GTI was also deprived of cover. The word ‘insured’ in the policy extension did not merely refer descriptively to the list of member firms, but qualified the claims against those firms out of which any covered claim against GTI must in turn arise. If GT Italy had no cover, there could be no ‘insured claim’ against GT Italy, and therefore no claim against GTI arising out of that.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.