England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
COMMERCIAL COURT
IN THE MATTER OF AN ARBITRATION CLAIM

		Rolls Building
		7th February 2017

MR. JUSTICE POPPLEWELL:

Introduction

1. This is an anonymised version of my judgment delivered at the conclusion of the hearing.
2. This is an application by T to remove A as an arbitrator pursuant to s.24 of the Arbitration Act 1996 ("the Act"). The arbitration is between T on the one hand and V and W on the other.
3. The grounds for the application, which are set out in a claim form issued on 16 August 2016, are first that circumstances exist which give rise to justifiable doubts as to the arbitrator's impartiality (s. 24(1)(a) of the Act); and secondly that the arbitrator has refused or failed properly to conduct the proceedings (s. 24(1)(d)(i) of the Act). There was a third ground advanced in the claim form, pursuant to s. 24(1)(b) of the Act, that the arbitrator did not possess the qualifications required by the arbitration agreement but that ground has been abandoned.
4. The dispute between the parties arises out of their practice together as accountants in two accountancy partnerships: one between T and V known as "VT", which had been a partnership lasting some 35 years, and a second between the three participants, T V and W, which had existed for around 12 years. The dispute arises out of the circumstances of T's departure from the partnerships and events shortly thereafter.
5. In summary, V and W claim a sum in excess of £1 million as damages which are said to arise from misrepresentations made by T as to the state of his health and his intention to work following retirement from the partnerships. They contend that T requested retirement on the grounds of ill-health and represented that he would not work again, save in a consultancy capacity for the partnerships; whereas, it is alleged, it was always T's intention to set up business by himself, or he was at least contemplating that possibility. It is said on behalf of V and W that they waived the requirement for T to work his full year's notice as a result of the misrepresentation and so lost the benefit of one year's annual fees. It is also said that in breach of restrictive covenants, and in breach of a deed signed on 17 April 2013 shortly prior to T's departure, T started soliciting and working for clients of the former partnerships. There is also a claim based on an alleged overdrawn capital account.
6. T denies the claim and counterclaims in excess of £1.3 million. His position is that following a period of illness, and having been denied access to client files and to his partnership drawings, he was unlawfully expelled from the partnerships. His case is that his doctor told him that he needed to have a phased return to full-time work building up his hours gradually and that V and W were obliged to allow such reasonable adjustments pursuant to the Equality Act 2010 but that they failed to do so; instead they insisted that he return full-time to work or retire, giving him no choice but to leave. So far as the restrictive covenants are concerned and the deed of 17 April 2013, T's case is that his signature was procured by duress and/or undue influence and/or was an unconscionable bargain in equity, in essence, on the basis that V and W sprung the deed upon him knowing that he was in a fragile state of health. He will seek to adduce evidence at trial, I am told, from the doctor treating him at the time, in support of the additional pleaded defence that he did not have the requisite mental capacity to sign the V T deed as a result of hepatic encephalopathy.
7. There was also an exit agreement entered into on 8 May 2013, according to T's case, under which he would be paid £500,000. He claims that sum, which has not been paid. His case is that V and W acted in repudiatory breach of the relevant deeds, or in breach of the duty of good faith they owed to him as a partner, in unlawfully expelling him and that he accepted those repudiatory breaches and the repudiatory breach of the exit agreement in starting to operate his own practice. He contends he had no choice but to set up alone because the result of the alleged breaches by V and W was that he had inadequate income upon which to live.
8. The essential ground of complaint which underpins this application is that the arbitrator improperly made a peremptory order that unless T serve the documents on which he wished to rely by close of business on 5 August 2016, he be debarred from relying on any such documents in the arbitration, and that such an order could not have been complied with because T was suffering the serious medical consequences of a liver transplant.
9. It is necessary to put that decision into the context of the history of the proceedings leading up to it.

The course of the arbitration proceedings

10. The partnership deed of 17 April 2013 contained an arbitration clause providing for disputes to be determined by an arbitrator appointed by the President of the Institute of Chartered Accountants for England and Wales who was to ensure that the nominated person had knowledge and experience of firms of a similar size and client base. The clause provided that the Act was to apply and that the decision of the arbitrator would be final and binding.
11. In September 2013 V and W made a without notice application in the High Court for an injunction restraining T from soliciting former clients, in support of anticipated arbitration proceedings. Such an injunction was granted. At a hearing between the parties it was not continued but was replaced, in essence, with undertakings given on T's behalf.
12. On 26 February 2014 the President of the Institute of Chartered Accountants nominated an arbitrator to deal with this dispute. She had some correspondence with the parties about the terms of her engagement and the scope of her proposed appointment in February and March 2014 but it appears from the correspondence that those issues were never resolved and no engagement terms were ever agreed. Neither side then took any steps to progress the arbitration for a period of more than one year. Mr. Edmonds of Griffin Law, the solicitors for V and W explains that that was because, at least on their side, they were distracted for most of the period by being engaged in litigation with T over the sale of the building at Bream's Buildings from which the firms had practiced, those proceedings taking place in the context of the Trusts of Land and Appointment of Trustees Act 1996.
13. In June 2015 Griffin Law sought to progress the arbitration. They wrote to the solicitors who had previously been acting for T, Howard Kennedy, but there was no substantive response. Following some further correspondence, on 11 August 2015, the arbitrator told the parties that she felt unable to continue as arbitrator because the reference would require considerable administrative and legal assistance which she was not able to accommodate within her practice, and which would involve fees which she did not think would be proportionate. She, therefore, as she put it, declined the appointment.
14. On 25 November 2015 A was nominated as her replacement by the President of the Institute of Chartered Accountants. She accepted the appointment and on 10 December 2015 she held a preliminary hearing by telephone. Both sides were represented by counsel. On that occasion A was told that T had a non-alcoholic condition of his liver which was serious and that, at the time, he was awaiting a liver transplant.
15. Each side proposed a timetable. The timetable proposed on behalf of T was longer and led to a later hearing than that proposed on behalf of V and W. The outcome of the hearing was that A imposed a timetable which was more generous than that sought by the V and W but a little tighter than that which had been sought on behalf of T.
16. The order provided that T should serve his defence and counterclaim by 26 February 2016; V and W should serve any reply and defence to counterclaim by 18 March 2016; T should serve any reply to defence to counterclaim by 15 April 2016; and each party should produce and provide to the other party the documents upon which they intended to rely by 20 May 2016. The order then contained a timetable for subsequent steps in the proceedings which were to lead to a hearing lasting up to four days before the tribunal in a period between 17 October and 18 November 2016.
17. On 23 February 2016 T instructed new solicitors, BSG Solicitors LLP, to whom I shall refer as "BSG". BSG immediately wrote to A seeking a six week extension for the next step which was the service of T's defence and counterclaim. Two grounds were advanced. The first was that BSG had only recently been instructed and would need to acquire and digest the documents held by T's former solicitors, Howard Kennedy. The second ground was T's ill-health, which was described at that stage as mounting kidney failure although it was intended to refer not to kidney failure but to liver failure. Letters from hospitals were attached indicating past treatment for his liver condition. A granted a two week extension to run to 9 March 2016.
18. On 7 March 2016 BSG sent an email to A enclosing a letter from King's College Hospital, at which T had been being treated, to notify her that T had been placed on a waiting list for a liver transplant. The covering letter explained that BSG had attended on T for the purposes of preparing the defence and counterclaim; that T was unwell and that it was difficult obtaining instructions from him; but that they and counsel would do their best to comply with the deadline.
19. On the following day, 8 March 2016, BSG sent a letter seeking an extension of time for service of T's defence and counterclaim until 4 p.m. on Monday 14 March. Despite an objection from Griffin Law, A granted that extension and on 14 March T's defence and counterclaim was served. In the light of the slippage, A issued a revised timetable for the service of pleadings but the deadline for disclosure of documents upon which the parties wished to rely remained 20 May 2016.
20. On 22 April 2016 BSG made an application that the disclosure regime be varied and for an extension of time for the next pleading step which it was incumbent on T to take, namely service of the reply to defence to counterclaim. The letter of 22 April from BSG said that T was seriously unwell. It went on:

"Despite this, and despite having been admitted to hospital for further treatment since receiving the reply and defence to counterclaim, [T] has attended my offices on numerous occasions. During those occasions [T] and I have combed through the documentation received from Howard Kennedy and have searched for further documents that may fill in extensive gaps in the reply and defence to counterclaim. I have also taken detailed instructions from [T] in many hours of conference with him. This culminated in sending instructions with what information was available to us to counsel on 19 April 2016. However, [T] and his legal advisors remain none the wiser as to many of the [V and W's] allegations due to their failure to provide documentation."

21. On that basis, what was sought was that V and W should first give disclosure of their documents, or at least certain documents, and that there then should be an extension of time for T's reply to defence to counterclaim and a pushing back of the order for disclosure of documents upon which the parties were to rely until 2 June 2016. That was opposed by Griffin Law. A declined to accede to that application and ordered that the timetable should remain as previously directed. She says in her witness evidence of that decision:

"I had in mind that at the preliminary meeting on 10 December 2015 [T] had opposed [V and W's] original position, that documents upon which the parties wish to rely should be annexed to the statements of case. It was, therefore, inappropriate, in my opinion, that [T] should now seek an order for [V and W] to file and serve documents by 29 April and postpone the requirement for [T] to file and serve his response to [V and W's]reply to defence and counterclaim from 29 April to 12 May. The timetable for [T] to serve his reply had already been extended from the original date of 15 April to 29 April."

22. The pleading was then served timeously by T on the last day, 29 April 2016.
23. On 17 May 2016, three days before the 20 May deadline for disclosure of documents upon which each party wished to rely, BSG wrote to A seeking a two week extension of time. BSG explained that T was in hospital having his liver drained and went on:

"I did meet with my client to go through the categories of documents which are relevant and have checked, of course, with the LCIA Arbitration Rules. I cannot see any reference to the ambit of disclosure within these rules and, therefore, we must look to the Civil Procedure Rules relating to disclosure under Part 31."

24. This was the first of a number of occasions in the correspondence in which Mr G of BSG appeared to confuse the exercise required by the order which A had made in this case, namely for disclosure of documents upon which the parties wished to rely, with the different exercise of standard disclosure of relevant documents which is required under the Civil Procedure Rules.
25. BSG's letter of 17 May went on:

"I have spent a period of time with my client previously to explain and establish what documents he has which are relevant and, therefore, to be produced. The problem is, I am accumulating documents to produce but as conformant with my duty as a solicitor… I have to ensure that I have authority to release and to check certain documents as to whether they are confidential or not. I am in a position now where I need to check with my client certain documents. My client is in hospital and cannot communicate with me. It cannot be ignored that my client is in the most serious of conditions and I understand will remain in a life-threatening position unless and until a successful liver transplant takes place which is awaited hopefully in the next few months. I, therefore, can produce certain documents but there are others I need to check. May I please ask for a further two weeks to ensure my client has recovered and I can sit down with him for a day and go through the documents?"

26. The response from Griffin Law was that they were prepared to agree an extension for a week but not two weeks. BSG accepted the extension which was being offered by Griffin Law and invited A to amend her order accordingly. That would take the deadline for disclosure of documents to 27 May 2016.
27. On 23 May 2016 BSG sent an urgent communication to A seeking to have the case adjourned. BSG explained that T had been admitted to hospital at the end of the previous week and that a liver transplant operation had taken place. The letter explained that his family had been asked to contact BSG when T could be seen but, based on medical advice given prior to the operation, that was unlikely to be for a number of weeks, before which T would not be in a position to give instructions.
28. A promptly responded saying that the case would be adjourned until the T's medical advice was such that he was well enough to give instructions. She wished him a speedy recovery.
29. There then followed a number of exchanges between the solicitors on each side which were copied in to the arbitrator. The position reached by 26 May was reflected in the email she sent to the parties in the following terms:

"I have considered your recent correspondence, I also note from the King's College Hospital website that after a period in hospital liver transplant patients are seen in clinic once a week and subsequently at longer intervals. I, therefore, propose the following:

1) I understand that Mr. Edmonds does not dispute that [T] has undergone the surgery referred to in the correspondence. Please advise if this is not the case.

2) On the basis that (1) above is agreed, the arbitration is stayed at least until [T] is discharged from hospital on the basis that whilst he is an inpatient it is reasonable, in my opinion, to assume he is too ill to give instructions.

3) Mr. G is to inform the tribunal without delay, copied to Mr. Edmonds, when [T] is discharged from hospital.

4) Unless Mr. G provides evidence in the form of a letter from the relevant hospital consultant to the tribunal that [T] is unfit at that time on discharge from hospital to give instructions, the next step in the arbitration, that is the submission of documents which was rescheduled for 27 May, is revised until a period of up to ten working days after the date of [T's] discharge from hospital.

Please let me know if you have any objections to the proposal by close tomorrow. I will amend my order after further consideration of your comments."

30. There were no objections and that was, therefore, the state of play at that stage.
31. On 3 June 2016 BSG wrote to A stating that T had been discharged from hospital on 1 June and that they were chasing the letter from his doctor. Since there had been, at that stage, no letter from a hospital consultant saying that T was unfit to give instructions, the ten working days started running and the deadline for service of documents, therefore, was due to expire on or about 14 June 2016.
32. On 14 June, the very last date, BSG wrote seeking a further extension. In that letter they said:

"As a result of contacting directly [T's] family, and we are being perfectly open here, what they have done is to download from our client's computer (PC) all his documents therein. We are trying to distinguish which relate to disclosure and which may be relevant to this case. We have not directly 'confronted' our client with that disclosure because of his illness. In the time honoured way we gave our client, as no doubt Griffin Law have, details as to what disclosure is required and the ramifications and necessity and obligations therein. We have not been able to go through this with [T] simply because of his illness and his subsequent liver transplant. Of course, we can put documents together but these documents have been supplied through his family and not through [T] direct. We are struggling to see what documents are relevant of those so far provided. Indeed, there appear to be other documents which we need to obtain. The whole purpose of this arbitration is to bring to a conclusion the partnership dispute between these partners of over thirty-five years. We could produce a few documents but they are not under the fiat of our client and we have not checked them with him because of his current condition."

33. The letter attached was a letter from Mr. Srinivasan. Mr. Srinivasan was the consultant surgeon in liver transplantation and HPB surgery at King's College Hospital who had carried out T's liver transplant and under whose care T was subsequently being seen. The letter, which was dated 8 June, said, so far as relevant, simply this: "[T] is currently recovering from his major surgery and is not in a position to attend court or any public space in view of his risk of acquiring infections". I note that nothing in the letter suggested that there would have been any difficulty in Mr. G seeing T at his home.
34. On 15 June 2016, A was provided with further correspondence between T's wife and the hospital about his condition. It came in the form of an email from Mr. Srinivasan's personal assistant which said: "Mr. Srinivasan has advised that [T] should be in a position to attend the solicitors' offices in a month's time". I observe, again, that there is nothing in that to suggest any difficulty in T being seen at home.
35. On the same day, and despite opposition from Griffin Law, A decided to grant an extension of time. She granted an extension of one month and three days for the service of documents upon which the parties wished to rely, now to expire at 4 p.m. on 20 July 2016. She also invited the parties to arrange a telephone hearing to consider the changes to the timetable which would be necessary as a result of the developments. A hearing was fixed for that purpose for 27 June 2016.
36. On the morning of the hearing T's counsel, Ms. Stewart, who has also appeared before me, produced a note. It referred to the fact that Mr. G of BSG had visited T at home the previous evening in order to seek his instructions. What Ms. Stewart said in her note, on instructions from Mr. G, was that Mr. G reported that T was recovering but was still very weak after his liver transplant; Mr. G was uncertain how much T was able to take in and he appeared to become tired very quickly; after discussions with T and his family Mr. G feared that T's engagement with these proceedings during the "critical recovery period", as it was put, was likely to jeopardise seriously that recovery. Therefore, it was, so the note said, the intention of the T through Mr. G, and with the assistance of his family, to seek medical evidence in support of a stay of the arbitration.
37. Ms. Stewart recognised, realistically, that there was no medical evidence available to her at the time that she could put before the tribunal and that in its absence the arbitrator might not be attracted to making an immediate order for a stay. Therefore the directions which she proposed were for a revised timetable. The proposed timetable did not seek to alter the date for the next step which was service of documents upon which the parties wished to rely. What was proposed was that 20 July should remain as that deadline pending any further medical evidence but that the subsequent steps in the previous timetable should be revised without fixed dates.
38. During the course of the hearing Ms. Stewart submitted that it was common sense that someone who had undergone major surgery would need some considerable time to recover. A responded that it was not a matter of "common sense" because, as she knew from her own personal experience in recovering from surgery, some people might recover from major surgery very quickly and that in each individual case it was a matter for medical evidence to establish the extent and nature of the recovery. It was in that context that Ms. Stewart repeated that T intended to seek medical evidence to support a stay.
39. On 11 July 2016 BSG sent a letter to A seeking a further extension of the date for disclosure, of at least six weeks, in reliance on an attached report from a Professor Davidson. Professor Davidson was not T's treating clinician. He had been independently instructed. He is a consultant HPB and liver transplant surgeon at the Royal Free Hospital and a professor of surgery at UCL. He had experience as a medico legal expert, and had been appointed in the same way as one might appoint an independent expert for the purposes of giving evidence. He had seen T once in clinic on 30 June and produced a two-page report the same day, although it appears it did not reach BSG until 10 July, the day before it was sent to the arbitrator.
40. Professor Davidson, having referred to the history of T's condition, addressed T's ongoing problems. He identified three as existing following discharge from the hospital in these terms:

"Due to his severe muscle loss, his activities are limited and he can walk only one hundred yards. He is largely housebound because he is not yet able to drive. His energy levels would certainly prohibit him being involved with any strenuous activities or indeed attending any lengthy meetings.

His second major problem is of a further kidney injury. He was readmitted to King's College Hospital following an episode of diarrhoea and vomiting with further kidney impairment. This, again, caused generalised effects and although he does not require dialysis at the present time he is still undergoing regular review for his kidney function and will have considerable side effects relating to his ongoing kidney impairment [Professor Davidson did not identify what those side effects would be].

Thirdly, is his neurological condition. He had an acute confusional state during his inpatient stay and still feels that he has considerable short-term memory loss. It is not unusual to have severe neurological complications related to immunosuppressive medication and I feel that this is all related to his response to new drug therapy. It is likely to improve with time as will his kidney damage and his muscle weakness.

I do not feel that [T] is sufficiently recovered from his liver failure and major liver transplantation surgery to be involved in any major court dealings. To this I would include any stress upon him by detailed meetings with solicitors or barristers. I would advise that he has at least six weeks and ideally two months of further convalescence before he is involved in pursuing or defending court proceedings. In my view, if he does not have this period of convalescence and is instead subjected to court dealings including meetings with his legal representatives this will seriously jeopardise his prospects of recovery or at the very least his rate of recovery.

Further, for the reasons I have explained above, his neurological condition gives me cause for concern and I cannot say with any degree of certainty that he is able to give reliable instructions at this stage."

41. In her witness statement, A explains her thinking when she received this. She says at paragraph 47:

"At this point in time the order made on 15 June and reaffirmed on 27 June required [T] to produce the documents upon which he intended to rely by 20 July 2016, i.e. nearly three weeks ahead of Professor Davidson's opinion, in circumstances where BSG had stated they would need half a day to a day with [T] to go through documents.

I was also concerned that the professor's opinion appeared to cut across the opinion of [T's] treating consultant, Mr. Srinivasan, who on 15 June considered that [T] would be able to give instructions by 15 July. It was not clear to me why Mr. Srinivasan/the team at King's College who were monitoring [T] on a fortnightly basis or [T's] GP, who I presume was receiving letters from King's College following each outpatient appointment, had not been asked to comment further on [T's] ability to instruct his solicitors to deal with disclosure."

42. On 13 July 2016, before there was any response from A, she received an email from Griffin Law who opposed the application for a stay. In summary, Griffin Law queried why T could not consider documents provided by his solicitors in his own time and at his own pace so that the matter could be progressed. They repeated a suggestion that had been made earlier that disclosure might take place in two stages with BSG providing immediately the documents which they had already identified as documents on which T would wish to rely, and that there be a further opportunity to produce further documents after a subsequent 42 day period. BSG's response to Griffin Law's suggestion was to reject it outright, although I found the explanation for rejecting it difficult to understand.
43. On 15 July 2016 BSG sent an email to the arbitrator, in what I regard as somewhat impatient and intemperate terms, responding to the points made by Griffin Law and repeating the request for a stay.
44. On 17 July 2016 A emailed BSG explaining that she had been out of the office from the last week and had been unable to pick up emails; and that she would consider the request for more time on the following day. She went on to note that her fees had not been paid by T and asked for steps to be taken to ensure payment.
45. On 18 July 2016 A emailed BSG in the following terms:

"I am in the process of going through the documents and medical reports to ensure I understand [T's] state of health which is obviously of paramount importance. I would like to emphasise that, contrary to your insinuations, I have based my decisions to allow additional time on each previous occasion on the medical evidence that you have made available…"

46. The reference to insinuations was to the fact that in a letter of 11 July 2016 BSG had referred obliquely to what A had said at the oral hearing about her own experience of recovering from surgery, and BSG had appeared pointedly to suggest that she was relying on her own experiences which must have been of a quite different kind of surgery.
47. A's email went on:

"I am sure you understand that I have to rely on medical evidence and in this regard I would be grateful for your comments on the following summary and your responses to the questions below:

19 May 2016 [T's] surgery.

2 June 2016 Two weeks after surgery [T] discharged from hospital.

15 June 2016 Report from [T's] surgeon, Mr, Srinivasan of King's College Hospital, that [T] should be able to attend the solicitors' offices in a month's time in response to requests made on 14 June. This opinion was provided in response to the question, 'When do his doctors believe [T] will be fully able physically and mentally to give instructions to his lawyers and barrister?'

30 June 2016 [T's] appointment with Professor Davidson at UCL

48. That was a fair and accurate summary of the medical evidence available at that stage.
49. A's email went on:

Is [T] now under the care of Professor Davidson following his liver transplant surgery? ……….

Was T's readmission referred to by Professor Davidson as his second major problem before or after 15 June?

Has Mr. Srinivasan, assuming [T] is still under his/his unit's care at KCH, provided a further opinion on [T's] ability to attend his solicitors' office or his neurological problems? If not, why has Mr. Srinivasan's opinion not been sought if [Ts] condition deteriorated between 15 and 30 June?

I wish [T] well and a speedy recovery but I am required to have regard to both parties and this is the reason I need to understand the current state of [T's] health so as to be in a position to make a decision."

50. Mr. G of BSG responded promptly by email assuring the arbitrator that no insinuation was intended to be made and that he respected that she was giving the matter her consideration. The email then went on:

"Can you confirm that whilst I obtain the answers our time is extended by at least until the end of this week? Based on the medical evidence both counsel and I have undertaken the view that we cannot press [T] further. We will try to obtain the answers urgently. I can, from my own file, however, advise:

1) The professor was brought in privately. The treating doctor is NHS and would not have produced a report timeously.

2) I can seek Mr. Srinivasan's opinion, however, I can write to him today but, for the reasons this will take time, I did not to date." (sic)

51. A responded almost immediately by email saying that she would extend the time until the end of that week, that is, from 20 July to 22 July as an interim measure. She observed that Mr. Srinivasan had, in the past, responded within a day and expressed the view that it seemed to her that he was in the best position to comment on T's ability to have a meeting with his lawyers. She then said:

"The deadline to which the order relates does not require [T] to 'undergo strenuous activity' or get involved in 'major court dealings'.

[she was there quoting from the activities that Professor Davidson had been directing his attention to].

It should be made clear in the request that the matter relates at this stage to a meeting with [T's] lawyers only and for [T] to look at documents supporting his own case in an unpressurised way. [T's] family requested the previous letter from Mr. Srinivasan, I believe."

52. On 20 July 2016 Griffin Law wrote pointing out that the exercise which was involved in meeting the deadline was largely an exercise for the lawyers and that it ought only to leave a small number of documents for discussion with the client in short meetings or calls to complete the process. The letter concluded:

"Although it is clear [T's] health is of great importance, likewise there are also two other parties to this arbitration who equally have a right to have issues addressed in a reasonable and timely fashion."

53. A response from BSG on the same day, Wednesday 20 July, addressed to A and copied to Griffin Law, took issue with the points made in Griffin Law's letter. It was in somewhat emotive and unmeasured terms. It appeared to treat the disclosure exercise required as if it were a standard disclosure exercise under the Civil Procedure Rules. It concluded by saying:

"We will receive an email to confirm from the hospital but our PA has just spoken to the PA to the NHS doctor, Mr. Srinivasan. The doctor is away until Tuesday and will be asked immediately on his return to answer us. Hence, I trust you will allow the receipt of this letter from the doctor before ruling and a few days in which for us, if he gives the all clear, to meet and deal with disclosure. Currently, we have until Friday this week.

[Friday was 22 July, the following Tuesday was 26 July]."

54. A responded promptly within a matter of minutes confirming that she would wait until the following week for the receipt of the letter from Mr. Srinivasan and that if he gave the go ahead for a meeting then she would give a few days thereafter. She clarified in a subsequent exchange of emails that that meant her order of 27 June 2016 was being varied to extend the deadline up to the middle of the following week, namely Wednesday 27 July.
55. The day before that deadline, on Tuesday 26^th July, BSG sent A an emailed letter in the morning. The letter explained that Mr. G had been to see T on the previous morning. The letter said, "He [T] could not spend too long a period with me because of his inability to concentrate". The letter then went on to say that the confirmation from the NHS doctor was being awaited with timings to enable them to press on fast with the case and that he was also waiting to hear from the NHS doctor by way of confirmation of the information contained in the opinion report of Professor Brian Davidson. The letter also identified, in its second half, the response to the discussion which had been going on as to payment of the arbitrator's fees. BSG volunteered that T was trying to sell properties in order to raise funds and, therefore, would try to settle the fees as soon as he was able to.
56. That letter was copied by email to Mr. G's client, T. About an hour later T sent a responsive email addressed to Mr. G saying, "Well said. My only criticism is that you should have told her to resign". T, no doubt unintentionally and by pushing the reply all button, copied that response not just to Mr. G but to A and to the relevant solicitor at Griffin Law. Mr. G sent a response promptly to T, copied to the arbitrator and to the other side saying:

"Anthony, I realise this is an error on your part. I stress and confirm [A] is a professional and I am sure you would not resign because you as a professional. I am sure she will take your word that you will pay soonest and will make her decisions as she confirms this will not affect her judgment." (sic)

57. A little under half an hour later T responded to Mr G, again copied to A and Griffin Law, "Paul, can't you take a joke?" Mr. G, no doubt mindful of trying to diminish any damage that might be caused, sent an email to T copied to A saying, "I appreciate you are under stress and I will ignore this message. I appreciate this is difficult for you. You have told you that in error, you have sent these emails to the arbitrator and you apologise to her". (sic)
58. I was told by Ms. Stewart that at this stage Mr. G had not taken any instructions as to what had been meant by T and was essentially putting his own interpretation on them. In those circumstances, it is questionable as to whether he had authority to assert on T's behalf what he set out in the emails.
59. Later that day, A responded to the letter emailed in the morning by pointing out that she had not, as the letter asserted, asked Mr. G to request Mr. Srinivasan to comment on Professor Davidson's opinion. She had asked, as she said, whether T was now under the care of Professor Davidson and whether Mr. Srinivasan had provided any opinion that invalidated the opinion he provided on 15 June in which he expected T to be able to meet his lawyers in a month's time, in other words by 15 July 2016.
60. It is true, as Ms. Stewart points out, that the instructions originally sent to Mr. Srinivasan had been provided to A previously and that at the end of the last paragraph they had invited Mr. Srinivasan's opinion on Professor Davidson's opinion. I am not able to accept, however, that A was previously aware of that by having read the instructions, or that there was anything odd in her responding as she did in this way when the matter was specifically identified in a particular letter that she was being asked to consider.
61. There was then also a letter from Griffin Law of 26 July responding to Mr. G's letter of the morning. It made the point that if T was in the process of selling properties, which was a stressful task involving numerous forms and the need to give detailed instructions, he ought to be in a position to attend to the participation in the disclosure process which was necessary. Griffin Law also said:

"We also refer to the email that [T] sent following receipt of the letter. Clearly this email was not meant for the eyes of the arbitrator, however, it goes to show your client's contemptuous attitude towards the arbitration and also the fact that he is well aware of what is happening. One can only assume that he has been aware of what has occurred all along and positively giving instructions to delay and inhibit the progress of the arbitration."

62. On the next day, 27 July 2016, BSG sent a letter to A saying:

"As you can see yourself from the email from [T], we are so worried about our client's medical state and our forced intrusion into his continuing near-death position - he was told that the transplant could still fail - we remain concerned and await your decision. We still await to hear from the treating doctor."

63. I observe that the reference to "our forced intrusion into a continuing near-death position" was clearly hyperbolic in the light of the medical evidence.
64. There was also, that same day, a further letter from BSG responding to A's email of the previous evening in which A had pointed out that she had not asked for Mr. Srinivasan to pass an opinion on Professor Davidson's report. In that letter Mr. G said:

"I have debated this with counsel. It was clear to us that you did not accept the professor's opinion, therefore a further opinion was sought. That was the reason why we believed you have granted a stay of only a few days. If you were happy to grant the stay without further evidence, why, may we ask, wait any further? Accordingly, I must ask you, please, whether you are, therefore, content to rely on the professor's opinion and, therefore, allow our client to recover in peace or are you, in fact, contending that the professor's opinion must be wrong?"

65. The terms and tone of this communication were somewhat provocative and, in my view, unfair. Nevertheless, A promptly gave a measured response. At 11:56 a.m. on 27 July she sent an email which said:

"Dear Mr. G,

On 15 June you forwarded Mr. Srinivasan's opinion that [T] would be able to meet with his lawyers in a month's time, that is by 15 July 2016. I issued an order allowing [T] additional time to meet with you and agree on the documents on which he intended to rely as a result of this opinion. I extended the time to 20 July providing [T] with additional extra time.

On 27 June you sought further time on the basis of your opinion and that of [T's] barrister of [T's] poor state of health. I declined to give further extra time on the basis that Mr. Srinivasan's opinion had not changed and the deadline was, in any event, several weeks away. You did not, at that time, ask for permission to seek another professional opinion on [T's] condition.

On 11 July 2016 you submitted the opinion of Professor Davidson which was dated 30 June 2016 and, again, sought extra time beyond the already extended 20 July deadline. I queried this opinion which conflicted with that of [T's] original surgeon and asked you whether [T] was now under Professor Davidson's care.

As an interim measure, and in order to give [T] the benefit of the doubt, I gave additional time and I asked whether Mr. Srinivasan had changed his opinion of [T's] ability to attend a meeting with his lawyers for the purpose of agreeing documents in support of his case. You then submitted Professor Davidson's opinion for comment by Mr. Srinivasan. In answer to your questions in your letter of today's date:

1) I am not content to rely on Professor Davidson's opinion.

2) Professor Davidson's opinion should not have been provided to Mr. Srinivasan.

3) If Mr. Srinivasan now considers, irrespective of any opinion of Professor Davidson, that [T's] condition has deteriorated since providing his opinion on 15^th June then I will consider that opinion.

I am also minded to have regard to [T's] email exchanges with you yesterday in which he sought to joke with you about upsetting the arbitration process by causing me to resign."

66. Although she said at that stage that she was minded to have regard to those email exchanges, in her witness evidence she has explained that she did not, in fact, do so when making her decisions.
67. Mr. G immediately responded:

"Our concern is also particular because of [T's] email. We are worried about the stress on his medical condition, occasioning the email you saw. As explained, it is clear that because of his lack of current funds he felt you would resign, that was all. He was not disparaging the process or wished to resolve this dispute (sic)."

68. Ms. Stewart told me that when that email was sent Mr. G had not taken instructions and did not know why it was that the emails had been sent in the terms that they were by [T]. Again, I observe that it cannot have been proper for him to proffer an explanation on which he had no instructions.
69. Mr G's email went on:

"Frankly, this man could have died. His state in our view is not good. We obtained, rightly or wrongly, an expert opinion from a particularly respected liver specialist to assist you. You do not accept this report. We do not know why. He saw our client after the letter to which you refer. An expert is an expert…"

70. The suggestion that they did not know why A had taken the stance she had in relation to Professor Davidson's report was quite inaccurate. She had taken the trouble to spell out with some care why she was taking that stance.
71. The email continued that once the report from Mr. Srinivasan was available they would revert back for directions.
72. Later that afternoon Mr. G sent an email to Mr. Srinivasan's PA. It superseded the more measured instructions which had previously been given to him, and which reflected what A had asked for from Mr. Srinivasan by way of an update (save in the limited respect of asking for an opinion on Professor Davidson's opinion). In Mr. G's email of 27 July to Mr. Srinivasan's PA he said:

"The most immediate deadline requires that I go through hundreds of pages of documents with him to ascertain their relevance. We also need to ensure that [T] has provided us with the correct documents in the first place. This requires that [T] concentrate for hours at a time and that any instructions he provided are reliable."

73. These terms were entirely inappropriate. They gave a tendentious account of what was required and did not portray the nature of the task as it had previously been identified by the arbitrator herself on 18^th July.
74. Mr G's email to Mr Srinivasan's PA went on:

"Having visited and spoken to [T], it is my view that he is not in a fit state to take the steps required of him at this point in time. Even if he was physically strong enough, and I do not see how he is, he is unable to concentrate for any period of time and his instructions appear confused. He seems unable to hold a thought for any period of time.

Further, because of the relentless stress of this litigation his behaviour has recently, in my view, become increasingly erratic which only compounds the concerns I have over the confusion that I witnessed prior to this. In addition to his, in my view, inability to provide reliable instructions, I am very concerned that [T's] prospects and/or rate of recovery are being prejudiced by these legal proceedings."

75. He then went on at the end of the email to say, "I cannot impress upon you the urgency of your response. In my view, [T's] mental state is deteriorating by the hour". That last sentence was, again, clearly put in hyperbolic terms which are quite unjustified by the evidence. Mr. G had, on his own account, only seen T on one relatively recent occasion. It is not at all clear on what he was basing his medical opinion but it was quite inappropriate for him to put this material in instructions to Mr. Srinivasan. I accept the submission made on behalf of V and W that this appeared to be an attempt by Mr G to influence the outcome by reference to his own non-medical assessment.
76. The response of the arbitrator after some further exchanges was to send to Mr. Srinivasan's PA her own email of 18 July in which she had clarified what it was that she was asking Mr. Srinivasan to do and the nature of the task required of T. BSG's response was that the arbitrator should not have sent that document. It is difficult to see any justification for that stance. The email made clear that what A was asking for was an update from the opinion of 15 June in which Mr. Srinivasan had opined that T would be able to meet his lawyers in a month's time.
77. The 27 July deadline, therefore, passed without any further medical evidence and on 28 July Griffin Law asked how the parties were to proceed and in particular whether the arbitrator intended to extend the time further for service of documents to await for Mr. Srinivasan's report. A responded saying that on the basis that the evidence had not yet come forward she intended now to press ahead with the arbitration.
78. On 28 July Griffin Law asked what that meant in terms of the time for compliance. Later that morning A responded to the parties that paragraph 2 of the 27 June order was amended so that the deadline for service of documents upon which the parties wished to rely was now Tuesday 2 August at 4 p.m.
79. On 29 July in the morning, shortly before noon, BSG emailed a letter which indicated that Mr. G was chasing the NHS doctor but added by way of a P.S, after the main body of the letter had been dictated, that Mr. G had just received an email from the doctor's secretary which indicated that Mr. Srinivasan had arranged to see T at his clinic on Tuesday 2 August and would then write an up-to-date letter as requested.
80. On 29 July, whilst still awaiting to hear from the doctor, Mr. G said in an email, "We, of course, recognise the order of the arbitrator and will deal, unless she orders otherwise, which we trust she will do, in view of the letter from the doctor".
81. In an email of 31 July, Mr. G said:

"Whilst I have dictated a letter to the arbitrator to be sent tomorrow, I have, of course, gone through the documentation from Howard Kennedy that I still need to go through with my client, which is the butt of my concern medically, as you know."

82. On Monday 1 August 2016, at about 5:45 p.m, BSG emailed a further letter to the arbitrator, although it was not received by her until the following morning, the date of the deadline. In that letter Mr. G said that he suspected he would need half a day to a full day in going through "all the documents with [T] that I have amassed" and asking A to review her decision. The request was that if Mr. Srinivasan confirmed his previous advice that T was able to deal with documents, three working days be allowed from that point until the documents had to be served. On the following morning, having explained that she only that morning got the email, A responded as follows:

"Mr. Srinivasan, [T's] consulting surgeon, confirmed on 15 June, in response to the question asking him when [T] would be fully fit and able to attend his lawyers' offices to give him legal instructions, that [T] would be in this position in a month's time, that was 15 July 2016. My order was amended to give [T] extra time to go through the documents and a deadline of 20 July was set.

That was extended several times thereafter at your request. Although [T], since his release from hospital following surgery on 1^st June 2016 (your letter dated 3^rd June 2016), has been seen regularly at two-weekly intervals by Mr. Srinivasan and/or his liver transplant team, no evidence has been submitted from his care team/Mr. Srinivasan that his health has declined. Mr. Srinivasan's opinion on 15 June, therefore, stands.

As regards Professor Davidson's letter of 30 June which was provided to me on 11 July, this opinion was obtained without any request being put to the tribunal or permission given for such an opinion. In your letter to me of 17 May 2016 you stated, with regard to this stage of disclosure, that, 'I am now in a position where I must check with my client certain documents'. You went on to request an extension because you needed to 'sit down with him for a day to go through the documents'. [T] has been granted twelve additional working days since 15 July to go through, 'certain documents' with you. I am not minded to grant yet another extension. The documents must, therefore, be disclosed today."

83. BSG's response sent at 13:39 on 2 August said, "Neither counsel nor I can put pressure on [T], as indeed evidenced by his emails to which you have referred as examples of 'unusual' behaviour, without the 'go ahead' of medical advice". That was a mischaracterisation. A had not referred to T's emails as examples of unusual behaviour; that was the characterisation which Mr. G had chosen to put on them. A pointed this out in an email at 13:54. When Mr. G took issue with that she sent a further email at 14:59. This included amongst other things the following passage:

"My understanding is that at least one previous arbitrator to this dispute has resigned. The actual comment of mine you correctly quote from below is clear and does not use the word curious or unusual".

84. The 2 August deadline passed without any disclosure of documents. On 3 August Mr. G sent an email saying:

"I have heard from [T] that he saw Mr. Srinivasan yesterday. He is awaiting blood tests but the doctor fully knows that he must issue his report to allow your decision which we hope will be varied. As soon as we have the report, of course, it will either portend that what is written by the professor, so more time should be allowed, or not. If not, we would immediately engage with [T] to produce the disclosure within five days thereof."

85. On 4 August A responded to the parties, addressed to Mr. G with copy to Mr. Edmonds of Griffin Law:

"I am writing further to my order of 28 July in which para. 2 of the order of 27 June 2016 shown below was amended to Tuesday 2 August 2016 at 4 p.m. with which you have not complied

[she then quotes it]...

By way of peremptory order, unless [T] provides the documents on which he intends to rely to [V and W] by 5 p.m. on Friday 5 August, he shall not be entitled to rely upon them."

86. Mr. Srinivasan had, in fact, produced his report and sent it to BSG on 2 August. Due to internal errors within BSG it had not reached Mr. G until the morning of 4 August at or about the time when A made her peremptory order. As a result of receiving it, he sent an email attaching a letter at 11:02 explaining that the report had only just been received and attaching it.
87. The report starts by setting out a diagnosis in six paragraphs. The first four paragraphs refer to the historic liver condition. The fifth paragraph talks about recent renal dysfunction and paragraph 6 says, "stress related to domestic dispute".
88. The main body of the text says this:

"I reviewed this gentleman in my clinic today. As you are aware, he is now two-and-a-half months' post liver transplantation for NASH-related sclerosis. On review today he seemed a bit disorientated and distressed following his recent dispute with his wife. He also had superficial cuts and bruises to both his forearms following the above-mentioned altercation with his wife. As you are aware, he had a recent episode of deranged liver function tests probably related to sub-therapeutic levels of Tacrolimus. He claims that some of Tacrolimus capsules had no medications within it when he opened the capsules. I have referred him to our pharmacist to check the remaining capsules.

I have had a long discussion with him and clearly in his current state of disorientation he is not fit to attend any court proceedings or indeed any strenuous consultations with the solicitors. I have stopped his Prednisolone today and maintained him on the rest of his medications. I will keep him under close review and I have arranged to see him back in my clinic in two weeks' time."

89. In the covering letter, BSG appeared to treat that as justifying an inability on the part of T to participate in the way necessary to take any further steps towards disclosure of documents. The request was, therefore, that the order be amended so as to give an indefinite extension of time for the next step, with BSG reverting with further medical evidence after the period of two weeks referred to by Mr. Srinivasan.
90. Griffin Law responded making a number of observations. First, they identified that the disorientation appeared to be attributed not to the liver transplant but to the recent dispute with his wife. Secondly, they pointed out that the report only addressed "strenuous meetings" which was undefined and which did not properly identify the task that was needed. Thirdly, they observed that it was incorrect for Mr. G to say that T needed to go through the documents that he had and those that he had produced and to press him, if necessary, to ensure full disclosure was made. That, again, seemed to be a misunderstanding of the nature of the disclosure exercise. Lastly, they drew attention to the emails about resignation and invited the arbitrator to conclude that they revealed T's true intentions.
91. There was a response from BSG on 4 August. It was in intemperate language. It ended by referring to the hope that T's illness, which was continuing, was one which within the months ahead would finally resolve.
92. On the afternoon of 4 August at 16:46 A notified the parties that she would maintain her peremptory order:

"Having carefully reviewed the correspondence from the solicitors to the parties and to me over the past few months regarding the relevant order for disclosure and the three reports from [T's] consultant surgeon, I am not minded to change my peremptory order. [T] is to disclose the documents on which he intends to rely by Friday 5 August 2016."

93. Neither T nor Mr. G on his behalf made any attempt to comply with the order even in part. There was no attempt to serve any documents, even those which it is evident from the previous correspondence had been identified by Mr. G as ones upon which T would undoubtedly wish to rely. Instead the response came the next day, that in view of the decision there was no choice but to apply to the High Court to replace the arbitrator.

The law

94. Section 24 provides:

"(1) A party to arbitral proceedings may… apply to the court to remove an arbitrator on any of the following grounds-

(a) that circumstances exist that give rise to justifiable doubts as to his impartiality…

(d) that he has refused or failed-

(i) properly to conduct the proceedings…

and that substantial injustice has been or will be caused to the applicant."

95. The following principles govern the application of s. 24(1)(a):

(1) Section 33 of the Act requires the tribunal to "act fairly and impartially between the parties".

(2) The question whether circumstances exist which give rise to justifiable doubts as to an arbitrator's impartiality is to be determined by applying the common law test for apparent bias (see Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451 at para. 17, A v B [2011] 2 Lloyd's Rep 591 at para. 22, Sierra Fishing Company & Ors. v Farran & Ors. [2015] EWHC 140 at para. 51).

(3) The test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (see Porter v Magill [2002] 2 AC 357 per Lord Hope at para. 103).

(4) The fair-minded observer is gender neutral, is not unduly sensitive or suspicious, reserves judgment on every point until he or she has fully understood both sides of the argument, is not complacent and is aware that judges and other tribunals have their weaknesses. The informed observer is informed on all matters which are relevant to put the matter into its overall social, political or geographical context. These include the local legal framework including the law and practice governing the arbitral process and the practices of those involved as parties, lawyers and arbitrators (see Helow v Secretary of State for the Home Department & Anor. [2008] 1 WLR 2416 at paras. 1 to 3, A v B at paras. 28 to 29).

(5) The test is an objective one. The fair-minded observer is not to be confused with the person who has brought the complaint and the test ensures that there is a measure of detachment. The litigant lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business and most litigants are likely to oppose anything which they perceive might imperil their prospects of success even if, when viewed objectively, their perception is not well-founded (see Helow per Lord Hope at para. 2, Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 per Lord Dyson, MR, at para. 69).

(6) All factors which are said to give rise to the possibility of apparent bias must be considered not merely individually but cumulatively (see, for example, Cofely Limited v Anthony Bingham & Knowles Limited [2016] EWHC 240 (Comm) at para. 115).

96. So far as concerns failure properly to conduct proceedings under s. 24(1)(d) and substantial injustice as a result, the relevant principles are as follows:

(1) The duty of the arbitrator in making procedural decisions is reflected in s. 33(1)(b) of the Act in the following terms:

"(1) The tribunal shall…

(b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined."

(2) Guidance on the application of s. 24(1)(d) is to be found in para. 106 of the report on the Arbitration Bill by the Departmental Advisory Committee of February 1996 ("the DAC report"), which provides:

"We have every confidence that the courts will carry through the intent of this part of the Bill, which is that it should only be available where the conduct of the arbitrator is such as to go so beyond anything that could reasonably be defended that substantial injustice has resulted or will result. The provision is not intended to allow the court to substitute its own view as to how the arbitral proceedings should be conducted. Thus, the choice by an arbitrator of a particular procedure, unless it breaches the duty laid on arbitrators by clause 33, should on no view justify the removal of an arbitrator, even if the court would not itself have adopted that procedure. In short, this ground only exists to cover what we hope will be the very rare case where an arbitrator so conducts the proceedings that it can fairly be said that instead of carrying through the object of arbitration as stated in the Bill, he is in effect frustrating that object. Only if the court confines itself in this way can this power of removal be justified as a measure supporting rather than subverting the arbitral process."

(3) Accordingly, the court will only remove an arbitrator where the conduct of the arbitrator is such as to go so beyond anything that could reasonably be defended as to cause substantial injustice, and only in the very rare case where an arbitrator so conducts proceedings that it can fairly be stated that instead of carrying through the object of arbitration, as stated in the Act, he is in effect frustrating that object.

(4) Against that background the court will not substitute its own view as to how the arbitral proceedings should be conducted, and if the arbitrator has adopted an appropriate procedure the court will not, unless that test is satisfied, substitute its own view as to what decision it would have reached in all the circumstances. The court's role is not to consider what decision it would have made on the material which was before the arbitrator. Where, as in this case, there is no question of an arbitrator having committed any error in the way he or she has gone about the decision-making process, what must be shown is that no reasonable arbitrator could have made the decision which the arbitrator made consistently with the duties imposed by s. 33 of the Act. Where a discretion is being exercised, as it is when considering an extension of time in relation to disclosure of documents, there may be a range of responses which may reasonably be adopted. The burden on the Claimant in the context of the present application is a burden to show that the response was outside the range of responses which could reasonably have been adopted in fulfilling the duty to deal with the proceedings with fairness and impartiality towards the Claimant as well as to the other parties.

(5) Those principles have been repeatedly adopted and applied in a number of cases; see, to give just one example, the decision of Dyson J (as he then was) in Conder Structures v Kvaerner Construction Limited, Unreported, 15^th April 1999. It is an approach which is dictated by the principle of efficient and speedy finality which is enshrined in s. 1(a) of the Act and the principle of minimum court intervention which is reflected in s. 1(c) of the Act.

(6) The test of substantial injustice, which is an essential ingredient in an application under s. 24(1)(d), is also used as a necessary threshold ingredient for challenging an award under s. 68 of the Act when the challenge is for serious irregularity. In that context, it is well-established that this places a burden on the applicant to show that the arbitrator's failure caused the tribunal to reach a decision which, but for that failure, it might not have reached (see per Andrew Smith J in Maass v Musion Events Limited & Ors. [2015] EWHC 1346 (Comm) at para. 40, Terna Bahrain Holding Company WLL v Al Shamsi & Ors. [2012] EWHC 3283 (Comm) at para.85(7)).

(7) The same applies in an application under s. 24(1)(d). In such a case, whether under s. 24(1)(d) or s.68, the burden of proving substantial injustice must be addressed on the evidence. Substantial injustice cannot simply be assumed (see Lesotho Highlands Development Authority v Impregilo SpA & Ors. [2005] UKHL 43 at para. 35).

Analysis and conclusions

97. Applying those principles, I turn, first, to the ground under s. 24(1)(d) of the Act. It is clear from the correspondence which I have recited, and the other correspondence which I have read but not set out in this judgment, that the arbitrator took great care over her decision-making. She read and reviewed all the relevant material. She granted a number of extensions and refused others, in each case by reference to the particular material which fell to be considered. She applied herself to it with diligence. She was not, as the history shows, unsympathetic to the medical difficulties which were placing constraints on the T and his legal team but she rightly stated that she had to have regard to the interests of both parties to the arbitration.
98. The arbitrator was entitled, and indeed required, to have in mind the imperative of speedy and efficient finality in arbitration which is embodied in s. 33(1)(b) and s. 1(a) of the Act. The background was one of considerable delay since the first nomination of an arbitrator. Ms. Stewart submitted that in the context of the earlier delay, which was said to be the fault of V and W in not progressing their claim, an extension in August 2016 of a few weeks would be all the more reasonable by comparison with that extensive earlier delay. If the arbitrator had approached the matter in that way it would have been a mistaken approach. Both sides have a duty to progress arbitration, especially where there are claims and counterclaims. T has a counterclaim and has professed throughout his desire to get on with matters quickly, as have V and W. It is not right to characterise the delay whilst the Bream's Buildings proceedings were taking place as something which is attributable solely to the fault of V and W. However that may be, and whether the earlier delay was culpable and, if so, on whose part, the fact that there had been delay made it all the more important that the arbitrator should seek to have the dispute resolved as swiftly as fairness permitted. It seems to be a dispute in which issues depend upon oral evidence unsupported by documentation. The longer matters are delayed the more memories fade and, in any event, in arbitration there is the imperative I have identified.
99. The timetable for the hearing, as the arbitrator had in mind, was a timetable working towards a hearing in October or November for final resolution of the dispute. By August 2016 that timetable had been in place for a while. As Ms. Stewart very fairly accepted, what was at that stage being proposed on the T's behalf would have very probably jeopardised the hearing date. That was a matter which the arbitrator was bound to take into account.
100. She was also entitled to take into account the indications in the material I have recited that T, or those on his behalf, were not seeking to be wholly cooperative in trying to resolve matters as speedily and efficiently as possible. For example there had been an outright rejection of the suggestion that documents might be provided in stages.
101. Against that background, the question for the arbitrator was whether the time should be extended because it was necessary so as to ensure that T had had a fair opportunity to comply with the order. That involved an assessment of two particular considerations. The first was an assessment of the task which was involved in serving documents upon which T would wish to rely and, in particular, identifying the extent to which T himself would need to participate in that task, as distinct from the participation which could be undertaken on his behalf by his legal advisors. The second aspect which fell for consideration was the medical condition of T and, in particular, the extent to which his medical condition impaired his ability to participate in the process to the extent necessary.
102. Taking those two considerations in turn, I focus first on the task which had to be undertaken. It was not standard disclosure of relevant documents as would have been required under the Civil Procedure Rules; it was merely the identification of those documents upon which T wished to rely. The case which T wished to advance had been identified at the pleading stage, apparently with some care and with the benefit of counsel's advice, and was set out in the defence and counterclaim with the benefit of documents which had been received by Howard Kennedy, the previous solicitors. Whilst one would not expect that exercise necessarily to have identified all the documents which would constitute those which would be relied on, at least some substantial part of the exercise of identifying such documents would have been performed at that stage. The exercise of identifying which documents were helpful to T's case was largely one which could be performed by the lawyers once the documents had been received. Mr. G had received all the documents previously supplied to Howard Kennedy. He had received, at a relatively early stage, the documents which had been downloaded from T's computer. It is not suggested that there are any other sources from which documents in T's control might have come.
103. Ms. Stewart submits that amongst those documents there would have been a number of emails which would have been unclear, and on which T's instructions would be required in order to decide whether or not they were helpful; and a number of emails where issues of confidentiality might have arisen which, again, would necessitate the instructions of T. I readily accept that that is the case, but the arbitrator could reasonably have taken the view that so far as input from T himself was concerned, all that was needed was, firstly, giving consent to what the solicitors had identified as helpful – not an onerous task and not requiring lengthy review of the documents – and secondly instructions where documents were ambiguous and needed clarification or issues of confidentiality needed dealing with.
104. The arbitrator had been told that it was only necessary for "certain" documents to be reviewed with T. The submissions made by Ms. Stewart referred to hundreds of pages of documents and that was what was identified in the second letter of instruction to Mr. Srinivasan, but it was made clear to me that that was not the scope of the "certain documents" that would need to be reviewed but was the totality of what had been downloaded from the computer or received from Howard Kennedy.
105. It is of some significance that in the communication in which Mr. G said that what was needed was half a day to a day to go through documents with his client, he referred to that length of time as being necessary to go through all the documents that he had amassed. If that was what he meant, and it appears to be what he was saying, he was proceeding on the misguided approach that the task involved having to go through with the client all the documents in order to decide what was helpful.
106. The correspondence from Mr G, as the arbitrator will have seen, betrayed a confusion about the nature of the exercise when Mr. G asserted, on a number of occasions, that what needed to be done was essentially the same as that which was required for standard disclosure. The arbitrator herself identified what she understood to be the nature of the task which was set out in her email of 18 July. It did not, as she stated, require T to undergo strenuous activity or get involved in major court dealings: what was required at this stage was simply a meeting or meetings with the lawyers, and only for T to look at documents in an unpressurised way.
107. Ms. Stewart submitted that because A was not a lawyer she had misunderstood the nature of the exercise involved. That is not a valid criticism. It seems that if anyone misunderstood the nature of the exercise involved it was Mr. G. There is no evidence of any misunderstanding on the part of the arbitrator.
108. It is against that background that I now turn to consider the medical evidence which was before the arbitrator. She was entitled to treat, as her primary source of guidance as to T's condition and capabilities, the independent evidence coming from Mr. Srinivasan. It was right for her to proceed on the basis of independent medical evidence, and all the more so because the hyperbolic tone of Mr. G's correspondence suggests that he had become too close to the issue and to his client's interests to be able to express any objective assessment. Ms. Stewart's criticism that the arbitrator failed sufficiently to take into account what Mr G had been saying about his client's condition is, for that reason, misplaced.
109. It was not unreasonable for A to expect the independent medical evidence to come from Mr. Srinivasan as T's surgeon and his lead clinician supervising his post-operative care. T was under his care and that of his team. He and his team would be best placed, as a result of seeing him regularly, to give full and informed information as to his continuing condition. Mr. Srinivasan could be expected to give a measured assessment over time. Professor Davidson, on the other hand, had only seen T on one occasion, he had no details of how he had reacted to the operation over time and was essentially expressing an opinion based on a snapshot.
110. Professor Davidson's report was in terms that suggested no contact at all would be appropriate. Mr. G clearly did not think that it really meant that because he did, indeed, visit and seek to take instructions on matters from T on at least one occasion. He says that he was not able to do so for "too long" but he does not descend to any detail as to how long that was or what the difficulties were.
111. Ms. Stewart submitted that the arbitrator should have concluded that the emails which T sent personally and by mistake by hitting the reply all button cast doubt on his mental condition. I see no reason why the arbitrator should have done so. It was only Mr. G's suggestion that that is the interpretation to be put upon them, without instructions. There is no reason, in my view, why the arbitrator must have taken the view that those emails cast doubt upon the T's mental condition. The arbitrator was entitled to conclude, had she wished to, that they suggested a conscious understanding of what was going on, a conscious desire that the arbitrator should resign, and therefore a conscious desire that the arbitration proceedings should be interfered with in that way.
112. Mr. Srinivasan's reports, therefore, were a proper bedrock upon which the arbitrator could reasonably form her judgment as to whether T could do that which was required of him. There were, as she said in her decision, three such reports. The first dated 8 June said that he was recovering from his major surgery and was not in a position to attend court or any public space in view of his risk of acquiring infections. It does not suggest that he was unfit to be seen at home by Mr. G. It does not suggest that he was suffering from any problems in engaging with the litigation other than attending court or a public space.
113. The second report from Mr. Srinivasan was the email of 15 June from the PA which said that T should be in a position to attend the solicitors' offices in a month's time. Again, that was solely confined to an ability to attend solicitors' offices; it did not suggest any cognitive impairment, any neurological condition, or any impediment in T dealing with matters by being visited by Mr. G.
114. The third report of 2 August is as notable for what it does not say as for what it does say. In the diagnosis section there is the reference to stress related to domestic dispute. There is, notably, no suggestion of any diagnosis of any neurological condition or mental incapacity flowing from the liver condition or the liver transplant. There is no suggestion there of any impairment of cognitive function by way of a medically caused condition giving rise to any past inability to comply with any orders.
115. Moreover, the disorientation which is identified is attributable to a recent and temporary cause, namely a dispute with his wife. The disorientation and distress is qualitatively described as "a bit" disorientated and distressed. The assessment is of unfitness to attend court proceedings or "strenuous consultations with solicitors". That is, as Ms. Stewart herself submits, likely to be a reference back to Mr. G's email of 27 July in which he talked of hundreds of pages of documents needing to be concentrated on by T for hours at a time. The arbitrator was entitled to conclude that that was not the exercise which was required and that there was nothing in Mr. Srinivasan's final report which suggested that there would be a difficulty in performing the task which was, in fact, to be performed.
116. The arbitrator observed, quite properly, that there had been a large number of working days as a result of the extensions of time, on which progress could have been made. She was entitled to conclude that T had been well enough to participate in the limited way necessary in a number of shorter sessions over that considerable period. She could also properly have taken into account the fact that T was apparently well enough to be involved in selling properties; and could properly have taken account of the indications that T was not, in fact, seeking genuinely to pursue a desire for the swift resolution of the proceedings but was, by his suggestion of resignation, intending to disrupt them.
117. A said at para. 60.6 of her witness statement:

"I considered the opinions of Mr. Srinivasan and the representations of the parties including representations about what the task initially will involve. Mr. Srinivasan's letter was concerned with [T's] current state of disorientation as a result of an altercation with his wife and stated that [T] was not fit to attend court proceedings or any strenuous consultation with his solicitors. I have in mind what BSG had stated about the time they required with [T] and the steps that had been taken by themselves and [T's] family towards completing the disclosure exercise and, after much deliberation, determined that [T] had been given a reasonable opportunity to provide the documents he intended to rely upon or, put another way, that I could not, on the basis of the various medical reports served in support, justify a further extension of time whilst being fair to both parties."

118. That is not a decision which the court can categorise as one which no reasonable arbitrator could have reached consistently with his or her duty under s. 33. It cannot be categorised as so far beyond anything which could be defended that the court must intervene in order to uphold the arbitral process. On the contrary, an intervention would be improper. It would be a subversion of the process by substituting the court's own judgement on the question for that of the tribunal appointed by a mechanism which was agreed upon by the parties and, therefore, a decision by the arbitrator consensually chosen by the parties.
119. There is, in my view, nothing which suggests that this is so far from anything which can be justified as to cause substantial injustice. No attempt has been made to prove substantial injustice. Ms. Stewart submitted that it is obvious there has been substantial injustice because T has been prevented from relying on any documents in the arbitration. That is not the effect of the order. The order was that he should serve the documents upon which he wished to rely by 5 p.m. on 5 August 2016. The arbitrator was entitled to reach the view that T had already had a reasonable opportunity to perform that function. That would be a complete answer to the question of substantial injustice.
120. Nevertheless, even had that not been the case, and when one looks at the position from 2 August or 4 August onwards, there has been no attempt on this application to identify what documentation could have been served by 5 p.m. on Friday 5 and what further documentation exists upon which T would wish to rely upon which he is unable to rely. Ms. Stewart draws attention to the fact that the arbitration has been stayed. For the purposes of this application, however the evidence which must be put before the court is evidence of substantial injustice. If it is to be said that it was not possible to serve on 5 August all the documents upon which T would wish to rely what T must do is first to identify, now, all the documents or at least categories of documents upon which he would wish to rely. That is an exercise which it has been possible for T to undertake in his then medical state, in the period between August 2016 and the hearing of this application, as the subsequent medical evidence shows. It would then be necessary to identify why they were important. It would then be necessary to identify the extent to which any such important documents or categories of documents could not have been served on 5 August 2016. The question of substantial injustice would be addressed to those documents or categories of documents now identified as ones upon which T would wish to rely which had not been identified as such already by 5 August 2016, and would depend upon the number and nature of those documents.
121. It was submitted that it would not have been open to BSG on behalf of T to have served the documents which they had already identified as ones on which he would wish to rely on 5 August 2016. That is simply not so. That course could have been taken rather than the obstructive stance of standing on what were misguidedly thought to be rights. If what had taken place had been a constructive engagement in which at least some of the documentation had been served, it may very well be that a subsequent request to revisit the peremptory order might have been met with some sympathy. However that may be, it is simply impossible for me to conclude on the basis of the evidence before the court that there has been substantial injustice when I have no evidence of the documents on which T would have wished to rely but which he says he has been prevented from relying on because they were not identifiable as such prior to 5 August 2016.
122. Ms. Stewart in her submissions asked rhetorically, what was Mr. G to do? He was, she submitted, hobbled by his professional obligations with a vulnerable client and he took advice from an agency in touch with the Solicitors Regulatory Authority. However, it is clear from the tone of the correspondence that the characterisation of the task that he said he was facing, which he put in terms of harassing T, was not an accurate assessment of the task as I have identified.
123. The answer to the question, what should he have done, is that first of all, he should have correctly identified the relevant task; secondly, got a report from Mr. Srinivasan rather than Professor Davidson; thirdly, have identified himself those documents on which reliance needed to be placed; and, fourth, taken it in stages with T in an unpressurised way, if necessary over the course of a number of visits.
124. If it is said that the report of Professor Davidson in some way precluded him from doing so, that is not the case. The report does not say that T was not up to dealing with the true nature of the task in a series of meetings. Professor Davidson had been given the misleading impression that what was needed was strenuous activity and, in any event, Mr. G recognised that notwithstanding what Professor Davidson had said, it was appropriate for him to approach T at home and to explore the tasks necessary for compliance with the order. This is not, therefore, a case in which T's solicitor was, as Ms. Stewart put it, caught between a rock and a hard place.
125. I turn, finally, to the application under s. 24(1)(a) on the grounds of apparent bias. There is nothing in this ground, for all the reasons I have given for rejecting the s. 24(1)(d) challenge. There is nothing in the decision itself, or the way in which the arbitrator went about it, which would give a fair-minded observer any reason to doubt that she would approach the substantive dispute fairly and impartially. She went about making the decision in this case in what the fair-minded and objective observer would regard as an entirely proper and fair-minded way. She dealt with sometimes intemperate and critical correspondence in a measured way. She dealt with the application with diligence. She explained the basis on which she was reaching her decisions, and her decision, in particular, of imposing and maintaining the peremptory order was one which she could properly have reached.
126. The only additional matter which falls to be considered under this head is the reference in one of her emails to her understanding that the previous arbitrator had resigned. Ms. Stewart submitted that what the arbitrator must have meant was that the previous arbitrator must have resigned because, as Ms. Stewart put it, T was being a "complete pain". That is not the right construction to put upon what A was saying and no fair-minded observer would have interpreted it in that way. At the time Mr. G did not put that interpretation on it. The true explanation is identified at para. 62 of the A's witness statement where she says:

"That did not come out of the blue, as BSG suggests, but was something that was made known to me by the parties, in particular by Griffin Law, at the preliminary meeting. Griffin Law were of the view that [T's] ability to engage in the arbitration at the time of [the previous arbitrator's] appointment was part of [T's] overall strategy to delay the arbitration, a strategy they believed he was continuing with. The point was, therefore, relevant to Griffin Law and thus was a factor to be weighed along with all the others when making my decisions as to timetabling.

That I referred to it does not give rise to justifiable doubts as to my impartiality and I do not believe that a reasonable and fair-minded person considering the full procedural history would conclude that I have been influenced by other factors other than the merits of the case when reaching my determinations."

127. That is not only her view but would be the view of a fair-minded observer. There is nothing in her reference to the previous arbitrator resigning which gives grounds for thinking there is a real possibility of apparent bias.
128. For all those reasons, and despite what, if I may say so, have been the very able submissions of Ms. Stewart on behalf of T, I will dismiss the application.
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