Fileturn was successful in an adjudication against RGH and RGH resisted enforcement of the Adjudicator’s decision on the basis of apparent bias.

RGH’s claim was based on the fact that the Adjudicator, Mr Sliwinski, was a one-time director of the claims consultants representing Fileturn, Alway Associates. Additionally, the director representing Fileturn, Mr Silver, was one of 4 co-directors at Alway Associates with Mr Sliwinski while he was there, albeit in separate offices. Furthermore, it was RGH’s case that he habitually requested Mr Sliwinski as an Adjudicator.

Taking these factors together, RGH submitted that the fair-minded and informed observer would conclude there was the real possibility for apparent bias.

The judge rejected this argument on the basis that the fair-minded and informed observer would conclude from the evidence:

1. Mr Silver had only requested the appointment of Mr Sliwinski on 12 occasions, and only on two of these occasions was Mr Sliwinski nominated;
2. There was no evidence that Mr Sliwinski knew of how many times he was requested;
3. 90-95% of the adjudications that Mr Sliwinski had conducted over the past 10 years had not involved Alway Associates, and therefore his practice as an Adjudicator was not dependent on business from Alway Associates;
4. Although they must have had a reasonably close business relationship while co-directors, there was no evidence that Messrs Silver and Sliwinski had an association outside their professional activities;
5. There had been no significant contact between the two since Mr Sliwinski had left Alway Associates – some 6 years ago;
6. There was no suggestion that Mr Sliwinski had any special knowledge of or connection to either of the parties (as opposed to their representatives) at the time of the adjudication.

Therefore, it would be unlikely for the fair-minded and informed observer to conclude that there was any case of apparent bias.