On keeping stumm

The Pope and I are in Malta Today. How would you react if you were an adjudicator or arbitrator – or judge for that matter – and he turned up to give evidence for one of the parties? Would you automatically believe everything he said? Would his evidence undoubtedly swing the outcome of the dispute in his side's direction?

And if you wrote an article in Building, say, swearing that quantity surveyors are the most truthful people in the world, would you destroy forever the impression of your impartiality? Could you henceforth be the adjudicator, arbitrator or judge in a dispute between a QS and an architect? Would you be, in law, biased and disqualified? Or what if you wrote an article for Scotland on Sunday describing the incorporation of the European Convention on Human Rights into Scottish law as "a Trojan horse?" Then what if you called the convention a pain in the neck for judges and a goldmine for lawyers? Would the impression you created be one of bias against all that human rights stuff?

In fact, this is bias in law, and the judge who wrote the Scotland on Sunday article had his judgments on those cases set aside for that very reason.

It's impressions that count. If a High Court judge sported a spider's web tattoo across their face and swore like a trooper, what impression would he or she create in your mind if you were one of the parties in the trial? Would you lose confidence in them?

The reason why I raise all this is because of you adjudicators and the impressions you create. After three years, nobody really knows what to make of you. Even the judges differ on what you are and what to make of the way you do your job. As to the impression you create, don't be surprised if your ordinary, everyday behaviour, the behaviour of all your years in construction, creates the impression of bias and therefore, in law, is bias.

If, for example, you think barristers are a bunch of wallies and one turns up to argue the toss in an adjudication, keep your mouth shut. Don't blurt out that you think his crowd are half-baked and know nothing about the real world – that's bias. And don't go off the deep end, cursing a solicitor just because of what he or she does for a living. An adjudicator or arbitrator who does that is biased, and will have their decisions set aside if someone complains.

If you think barristers are wallies who know nothing about the real world and one turns up to argue in an adjudication, keep your mouth shut

This business of bias isn't really very much to do with how an adjudicator, or arbitrator, or judge actually feels or thinks about one party or the other. The judge might be the straightest, most even-handed bloke in the world. He may be so objective that even if his old gran turned up in court he would still decide against her, if that's what the facts indicated.

The test for apparent bias asks first what all the circumstances are that have a bearing on the suggestion that bias has arisen; then asks whether those circumstances would lead a fair-minded and informed outsider to conclude that there was a real possibility or danger that the tribunal was unfair.

Can you see that it is pointless to enquire as to the reality or truth or actual bias in the adjudicator's mind? We don't test for reality.

We test for impressions. In a very recent case, a lay member of a High Court tribunal applied for a job to the company that was giving expert evidence in a pharmaceutical case. She was removed for apparent bias. She had merely created the impression of wanting to join that firm and an impression that she might favour its evidence.

Look, we all have our prejudices, opinions and preferences. Judges tend to be private and shun publicity to avoid blowing the gaff on some inner feelings. Arbitrators sometimes play the same trick. As for adjudicators, stifling feelings, observations or thoughts – that's preposterous. Just be normal. And if someone characterises that behaviour as bias, well, maybe the test should be modified since adjudicators are not judges, nor arbitrators nor are they conducting legal proceedings.