ADJUDICATORS AND THE MEANING OF ‘IMPARTIALITY’

Glencot Development and Design Ltd v Ben Barrett & Son (Contractors) Ltd ([2001] BLR 207)

In Glencot Development and Design Ltd v Ben Barrett & Son (Contractors) Ltd [2001] BLR 207 HH Judge Humphrey LLoyd QC held that the words ‘impartial’ and ‘impartially’ in s108(2) of the Housing Grants, Construction and Regeneration Act 1996 and paragraph 12 of the Scheme for Construction Contracts should have the same meaning as they have at common law and under the Human Rights Act 1998. The vital test to be applied is an objective one, namely whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger (the two tests being the same) that the tribunal was biased. On the facts of the case it was held that the defendants had real prospects of establishing that the adjudicator, as a result of his involvement in an attempted mediation of the dispute between the parties, was no longer impartial and that the defendants had not affirmed the jurisdiction of the adjudicator.