23/02/2024

When preliminary turns prejudicial: new judgment on arbitrator bias

H1 & H2 v W & Ors is a rare example of the court removing an arbitrator for apparent bias under s 24(1) Arbitration Act 1996. The case arose out of a claim on film production insurance following an on-set accident with a Molotov cocktail which led to the lead actor being badly burned. The arbitration agreement in the insurance policy provided for an ‘experienced practitioner in film or television production’ and a sole arbitrator was duly appointed by the British Film Institute.

Calver J held that a fair-minded observer would consider there was a real possibility of bias, by reason of comments made at a PTR in the arbitration by the novice, non-lawyer arbitrator. The comments related to the evidence of an expert already known to the arbitrator.

While each case of apparent bias will turn on its facts, the judgment contains interesting analysis of what is to be expected of trade or industry arbitrators, and of the extent to which decision-makers can safely make provisional comments on the merits without a risk of demonstrating apparent bias.

The court also addressed the principles relating to anonymisation that are relevant to such an application.

David Lewis KC appeared for the insured, instructed by Quinn Emanuel.