Amec Capital Projects Ltd v Whitefriars City Estates Ltd (Part III)

The legal principles governing whether a tribunal was apparently biased
 
AMEC CAPITAL PROJECTS LTD v WHITEFRIARS CITY ESTATES LTD

Court of Appeal
Kennedy, Chadwick and Dyson LJJ
28 October 2004
 
 
In this Court of Appeal case Dyson LJ set out the legal principles governing whether a tribunal in the form of an adjudicator was apparently biased. The common law rules of natural justice or procedural fairness were that the person affected had the right to prior notice and an effective opportunity to make representations before the decision was made and to an unbiased tribunal. These requirements were conceptually distinct with the result that it was possible for an unbiased tribunal to make a decision that was unfair insofar as the losing party was denied an effective opportunity of making representations or a biased tribunal to allow the losing party an effective opportunity to make representations;
 
If a decision was in breach of the rules of natural justice or procedural fairness, it would be liable to be quashed if susceptible to judicial review or to be held to be invalid and unenforceable in the world of private law. The test for apparent bias was set out by the House of Lords in Porter v Magill (2001) and was whether a fair-minded and informed observer, having considered all the circumstances which had a bearing on an objection that the decision-maker was biased, would conclude that there was a real possibility that he was biased. Lord Hope in Porter v Magill described the above test as no more than a "modest adjustment" to the "real danger of bias" test propounded by the House of Lords in the earlier case of R v Gough (1993). The Court of Appeal in In re Medicaments and Related Classes of Goods (No 2) (2001) stated that bias was an attitude of mind preventing the judge from making an objective determination of the issues. A judge might be biased by having reason to prefer one outcome of the case to another or to favour one party rather than another or a prejudice in favour of or against a particular witness preventing an impartial assessment of the evidence of that witness. Bias could come in many forms, for example it might consist of irrational prejudice or arise from particular circumstances which, for logical reasons, predisposed a judge towards a particular view of the evidence or issues before him.
 
Advice Note
Apparent bias can be shown by an adjudicator in many different ways. The test is that a fair-minded and informed observer would conclude that there was a real possibility that he or she is biased.
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