During the course of an adjudication, the Adjudicator had also been asked to mediate an issue. These negotiations broke down and the Adjudicator made a decision in Glencot’s favour. Ben Barrett resisted enforcement of the Adjudicator’s decision on the ground that, as a matter of law, the Adjudicator’s participation in the mediation meant that he was no longer impartial and having not withdrawn his resulting decision was invalid.

The Judge was of the view that the case was one of apparent bias, rather than actual bias, and the relevant test was an objective one i.e. in considering the circumstances of the case, would a fair-minded and informed observer conclude that there was a real possibility or danger that the Adjudicator was biased. Applying this test, the Judge held that the decision should not be enforced by the court on the basis that Ben Barrett had good prospects of establishing its defence that the Adjudicator could no longer be regarded as impartial in light of his participation in the mediation process.