England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		St. Dunstan's House 133-137 Fetter Lane London EC4A 1HD
		07/09/2010

MR. JUSTICE COULSON:

A. INTRODUCTION

1. The claimants, Dr. G Goel and Dr. M. Goel, to whom I shall refer as "the Goels", employed the defendant, whom I shall call "Amega", to carry out the construction of a house called Lavenders at Furzfield in Oxshott near Leatherhead in Surrey. This is where the Goels now live. The parties fell out and the building contract was terminated as long ago as January 2008. In July 2009 Amega issued proceedings in the TCC for monies due under the contract and, in consequence of the termination. Because the contract incorporated the JCT Minor Works form, there was an arbitration agreement and, at the Goels' insistence, those court proceedings were stayed for arbitration^[1]. In the autumn of last year, Amega obtained an adjudication decision in their favour in the sum of £11,713.63, which sum has been paid by the Goels.
2. Over the course of the last nine months or so, the arbitration has progressed with glacier-like speed. The reasons for that delay will be explored in section B below. Now the Goels apply for an order removing the arbitrator for alleged bias, pursuant to section 24 of the Arbitration Act 1996 ("the 1996 Act"). Having set out the relevant principles of law in section C below, I address the individual criticisms of the arbitrator in section D. There is a short summary of my conclusions in section E below.

B. THE RELEVANT CHRONOLOGY

3. Despite an exchange of correspondence on the identity of a possible arbitrator, the parties were unable to reach an agreement. It appears that whilst Amega wanted a legally qualified arbitrator, the Goels preferred a surveyor. On 13^th November 2009, Amega sought an appointment by the President of the RIBA, in accordance with the contract. There was then a delay because, for the first time, the solicitors originally acting for the Goels raised the possible effect of Amega's CVA with the RIBA. This issue was not resolved until 18^th February 2010, when the supervisor confirmed that the arbitration could proceed. It is clear that this delay was not the responsibility of the Goels. However, during that period, the Goels changed their solicitors to Sprecher Grier Halberstam LLP, whom I shall refer to as "SGH".
4. On 9^th March 2010, the RIBA notified the parties that Mr. Paul Whitley had been appointed as the arbitrator. SGH immediately responded in writing to reserve the Goels' position "in relation to the validity of the reference to arbitration". This purported challenge has never been explained. Notwithstanding this, in his first letter dated 23^rd March, the arbitrator wrote to the parties proposing a preliminary hearing on either 16^th or 13^th April "to assess the nature of the dispute and to hear the parties' submissions on the appropriate procedure". He made plain that it was not necessary for each party to attend in person if it was represented "though I have no objection to it doing so".
5. By return, on 24^th March, Amega's solicitors, Ellis Taylor ("ET"), requested an alternative date because their client was not available on the dates mentioned. Subsequently, SGH also confirmed that the Goels were not available until after 21^st April 2010. Not having heard from either party further, on 12^th April 2010 the arbitrator fixed the date for the preliminary meeting for 30^th April.
6. On the afternoon of 29^th April, i.e. the day before the preliminary meeting, Dr. Goel, not SGH, e-mailed Mr. Whitley, the arbitrator, direct to say that he would be out of the country until 5^th May. He asked for the hearing to be adjourned. The e-mail was not copied to ET and made no reference to SGH. The arbitrator spoke to the Goels' then solicitor, Mr. Nik Haria, at SGH, who said that "he had been unable to get instructions from his client". The arbitrator replied that "it was surprising that his client seemed to manage to communicate directly with the arbitrator but not with his solicitor". The arbitrator explained that, since he had given the Goels "a reasonable opportunity to agree the date of the preliminary meeting after the significant delay … it was his duty to proceed with the preliminary meeting".
7. Accordingly, the preliminary meeting went ahead without the Goels and without SGH, who did not attend, because the Goels had not instructed them to do so. The arbitrator asked for various documents which ET sent to him under cover of a letter dated 6^th May. On 18^th May the arbitrator sent out a draft order for directions No.1, which set out a timetable for the provision of pleadings and evidence. In accordance with that draft timetable, Amega were to provide their statement of case by 21^st May and the Goels were to provide their defence by 18^th June. The arbitrator said that the parties had until 25^th May to comment on the draft order before it was formalised. This was expressly designed to accommodate the Goels, because they had not attended or been represented at the first preliminary meeting.
8. The following day, 19^th May, SGH informed the arbitrator that they were no longer instructed by the Goels. It appears that Morgan Walker ("MW"), the Goels' third firm of solicitors involved in this arbitration, took no active part in the arbitration until 3^rd June 2010. During the intervening period:

(a) On 21^st May, Amega served their points of claim. They sought £200,000-odd in relation to unpaid monies. It was a standard final account and termination claim.

(b) On discovering that SGH were no longer acting for them, the arbitrator wrote directly to the Goels on 21^st May, explaining the position in the arbitration and giving them a further opportunity to address the proposed timetable set out in draft preliminary order No. 1. The Goels did not reply to his letter and did not seek an extension of the seven-day period. Accordingly, on 24^th May the arbitrator said that he would formalise the draft order for directions which required the defence to be served by 18^th June. He formalised those directions on 27^th May.

(c) The Goels had not engaged with the draft procedural order, but that was not because they were not turning their minds to the arbitration. On the contrary, on 24^th May they wrote direct to the RIBA in which they said:

"The arbitrator suggested, without full consultation with us, is objectionable and therefore not acceptable. However, we are in process of getting legal advice and our objections in this matter will follow."

Please also note that any correspondence will be accepted by post only".

This letter was not sent to ET and not sent to the arbitrator. No legal objections have subsequently been provided to the RIBA.

9. On 3^rd June 2010, as their first action in this case, MW wrote a lengthy letter to the arbitrator and to ET which reserved the Goels' rights in relation to a number of matters. The first paragraph of the letter to ET was in these terms:

"We have not yet received all the papers in this matter and are in the process of obtaining complete instructions, including documentation on arbitration. We have scheduled an urgent meeting with our client next week when we hope that papers will be provided, but it will take further time for us to be in a position to advise and respond. We also understand from our client that it has not been consulted or offered a choice of arbitrator and intends to raise objection to the appointed arbitrator/the jurisdiction. We have therefore requested the arbitrator for extension of time for submissions on jurisdiction and a copy of the same is enclosed for your reference. We trust that you would agree to our request for extension as you would fully appreciate that our client was not represented until now and has a right to seek legal advice. This is the first extension asked on behalf of our client, therefore we would expect your client to reasonably agree to the same."

That paragraph obviously contains a number of factual errors, but I would imagine that those resulted from MW's unfamiliarity with the documents, which, given their recent instruction, was understandable.

10. On 9^th June ET opposed the suggestion that the time for the service of the defence should be extended. On the same day, the arbitrator wrote a lengthy letter to MW, explaining the earlier opportunities that had been granted to the Goels and the extent to which he had already accommodated their requests. On 18^th June the arbitrator agreed to extend the Goels' time for service of the defence to 30^th June. This was formalised in order for directions No. 2. This extension and this order were not even acknowledged by MW. Accordingly, on 25^th June, the arbitrator asked his PA to enquire of MW whether this date was going to be met. The answer was at best, equivocal, the suggestion being that, in the light of various unspecified issues, Mr. Amba of MW could not see how such a document could be filed. In the light of this response, the arbitrator informed the parties on 25^th June that an urgent short interlocutory hearing with each party's solicitors was required. He offered possible times on both 29^th and 30^th June, i.e. on or before the scheduled date for the service of the defence.
11. MW responded on 28^th June. They made it plain that they could not meet the dates suggested by the arbitrator because the supervising partner was away in India. Although the letter made no firm proposals for any specific meeting date, it was clear that the meeting would not happen until into July. Subsequently, the date of 5^th July was agreed for the meeting the letter requested a stay of the current directions. This request was the subject of an express written objection by ET the following day, 29^th May. In his long letter of 30^th June, the arbitrator set out in detail how and why he had concluded that a stay was inappropriate. In the light of the subsequent criticisms of the arbitrator, it is necessary to set out a part of that letter in full:

"You have applied for a stay to these proceedings which Ellis Taylor have resisted on the basis that any further delay would unfairly prejudice the claimant. Your reasons for such a stay are in effect the same reasons that you previously gave in your letter of 16^th June to seek to delay the dates for compliance with my order for directions No. 2 and which application I refused by my letter of 18^th June to you. These reasons were the lack of appropriate staff availability within your firm to deal with the matters timeously and the fact that the respondent was concerned about its security for any recoverable costs that may be awarded (although it has made no application to me in this regard). I confirmed in my letter of 18^th June to you that I did not consider that either of these issues should have any bearing on the respondent's responsibility to comply with my order for directions No. 2.

I would note to you that I set out in detail in my letter of 9^th June to you the history of the number of times that I have informed the respondents and their solicitors of the issues at hand and of the opportunities given to make submissions in relation to the procedures for the arbitration, each of which they have failed to avail themselves. In this letter I further invited you to make any submission that you wished to make in relation to my proposal to extend time for compliance with my order for directions No. 1; again, I received no response. Notwithstanding that failure to respond and notwithstanding the claimants' submission that I should not extend time for compliance, I did issue order for directions No. 2, which duly allowed the respondents a further 12 days to serve their defence and counterclaim in order to seek to strike the appropriate balance.

Your current application for a stay repeats the first of these two points and adds further detail in justification of that reason, being that: (i) your firm was only appointed three weeks ago; that (ii) you only held your first meeting to discuss the matter with your client on 25^th June; that (iii) your Mr. Sanchetti is away from the office; that (iv) you were busy with another arbitration; and that (v) your firm is busy dealing with an audit. I consider that all of these reasons are simply examples of the lack of staff resource within the firm of solicitors chosen by the respondents to deal with this matter, which reason I do not consider to be adequate to delay the proceedings.

It has been the choice of the respondents, (i) to fail to give instructions to their current solicitors to attend a preliminary meeting; (ii) to then remove instructions altogether from those solicitors to act on their behalf; (iii) to then delay in appointing new solicitors; (iv) to then choose a firm of solicitors where the partner who would deal with the case was unavailable at the key times; and (v) to fail to meet and brief/instruct those solicitors timeously. …

You say that 'unless outstanding issue are resolved, there is little point in proceeding further as we would have to make the necessary applications that could further delay matters'. As set out herein, I consider that I have given the respondent every reasonable opportunity to engage in the setting of the proceedings in this arbitration and they have failed to avail themselves of this opportunity. Furthermore, as I have made clear in my orders, the respondent is at liberty to make any other application that it likes to me, but has chosen not to.

My duty in this matter is particularly governed by section 33 of the Arbitration Act 1996. In this I am to adopt procedures suitable to the circumstances of the case, avoiding unnecessary delay or expense whilst acting fairly and impartially between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent. I consider that in setting the respondent's date for compliance with the directions within order for directions No. 2 to serve its defence and counterclaim by today, 30^th June, I have fulfilled that duty.

For the foregoing reasons, I do not consider it appropriate to grant a stay of the arbitration. My order for directions No. 3, attached, deals with this matter."

12. Order for directions No. 3 dismissed the application for a stay, fixed the meeting for 5^th July and ordered the Goels to pay the costs of the order. No response in relation to order No. 3 was received from them or from the Goels.
13. Instead it appears from the correspondence that the Goels and/or their solicitors did two things. First, they served the defence and counterclaim that they had been ordered to provide. The document was just over two pages long. It did not address the detail of Amega's claim. It purported, in a handful of lines, to set out a counterclaim for £3 million. It is the sort of pleading that in the High Court, at any rate, would have been struck out for want of particularity. Moreover, the first page consisted of a general caveat couched in highly unusual terms and which contained a number of criticisms of the arbitrator.
14. Secondly, MW wrote to the arbitrator to accuse him of bias, lack of impartiality and lack of independence. This crucial letter was not included in the bundles provided for this hearing and it was only at my request that a copy was provided to me during the course of the hearing this morning. The relevant parts of the letter were in these terms:

"It is most surprising that as an arbitrator (to which our client objects), you have failed to act independent and reasonably. You have not informed the parties whether the directions stand stayed pending a meeting, which was only agreed as proposed by you. If your intention was not to provide any further directions, then you should have made it very clear at an early stage, but you did not do so at all. You simply kept respondent in the dark, which demonstrates a bias against the respondent in these proceedings.

Our client objects to arbitration and to your appointment as an arbitrator. Our client has reasons to believe that although you insist being impartial, you had meetings at the claimant's representative's premises or elsewhere without the respondent being present. It is also believed by our client that you are prejudiced in favour of the claimant/its representatives. Our client also believes that while they were being unrepresented, your conduct towards them was not fair."

Again that letter contains a number of important factual mistakes (for instance, the Goels did not object to arbitration; in fact, they apparently wanted arbitration so much that they sought to stay the original court proceedings). It is much less excusable for such mistakes to be made by MW at this stage, in the light of what should have been their familiarity with the issues and the very serious and unusual allegations that they were making.

15. Unsurprisingly, the arbitrator responded to this letter by return, indeed in a letter also dated 30^th June. In that letter he refuted with some care the allegations of bias. As to the criticism that he had not dealt timeously with the application for a stay, he pointed out that he had first received that application by e-mail on Monday, 28^th July and had dealt with it on Wednesday, 30^th July, which he considered to be timeous. He pointed out that he was out of the office on the 28^th and most of the 29^th. He also pointed out to MW that the first preliminary meeting had indeed happened at ET's premises without the Goels being present for the reasons which I have previously outlined. The arbitrator noted that no other explanations were given for some of the serious allegations of bias raised in the letter.
16. On 1^st July ET confirmed that they would attend the preliminary meeting on 5^th July. But on the same day, although the meeting had been requested by MW on behalf of the Goels, MW e-mailed the arbitrator to say that they were reconsidering whether to go ahead with the meeting. The letter was put in equivocal terms as follows:

"In the light of what has happened yesterday, our client is currently reconsidering whether to go ahead with the meeting on 5^th July 2010. Therefore for now there is no confirmation from our client. Also if such a meeting goes ahead, our client cannot be held responsible for the costs incurred by the arbitrator or any other party. We would write back once we have further instructions on this matter."

17. The arbitrator was obviously concerned that the Goels or their solicitors might not attend the second meeting, just as they had not attended the first. Accordingly, on the same day he responded to say this:

"I hope and trust that the respondent will be represented at this meeting as from this the further procedures for the reference will be ordered and I would very much like to hear what the respondent would have to say about the various issues.

However, in case your clients were to choose not to avail themselves of this opportunity and to co-operate with the tribunal so as to ensure a proper and expeditious conduct of the proceedings, then I should note the following to you. The date of this meeting was agreed in order to fit in with Mr. Sanchetti's availability on his return to the office. I made an order requiring each party to be represented at this meeting. Should the respondent choose not to attend, then I shall be proceeding with the meeting ex parte. At and/or following the meeting, I will be making further orders for directions."

The following day the arbitrator sent out an agenda for the meeting. Many of the items on that agenda, such as jurisdiction and the like, were matters which had been specifically raised by MW and/or the Goels.

18. The meeting took place on 5^th July. For reasons which were not explained then, and are not explained in the evidence before me, the Goels did not attend and they were not represented by MW. The promise from MW that they would go back to the arbitrator once they had further instructions was simply not met^[2]. As a result, the arbitrator was obliged to write to both solicitors following the meeting on 7^th July, setting out in detail what had happened at the meeting. He said that the defence and counterclaim was inadequate and that he had decided to give the Goels one last opportunity to put in a proper pleading. In his order for directions No. 2, he extended the time for service of a fully particularised defence and counterclaim to 19^th July 2010.
19. On 19^th July 2010, MW on behalf of the Goels issued the present application to remove the arbitrator for alleged bias. Subsequently, the arbitrator refused a yet further application to stay the arbitration whilst the application was resolved, and he made a peremptory order for the service of a fully particularised defence and counterclaim by 19^th August 2010. This was two months after the original date ordered for the service of that pleading. A pleading was served by that date. It was not settled by counsel. Although ultimately it will be a matter for the arbitrator, it seems to me plain on a perusal of that pleading that it is not the fully particularised pleading that he ordered. In particular, the counterclaim is a wholly deficient vehicle for the setting out of specific allegations of breach against Amega.

C. THE RELEVANT PRINCIPLES OF LAW

C1 Bias

20. In Re Medicaments and Related Classes of Goods (No. 2) [2001] WLR 700, Lord Phillips of Worth Matravers described bias in these terms:

"37. Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve. A judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reason to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of a prejudice in favour of or against a particular witness, which prevents an impartial assessment of the evidence of that witness. Bias can come in many forms. It may consist of irrational prejudice. Or it may arise from particular circumstances which, for logical reasons, predispose a judge towards a particular view of the evidence or issues before him."

21. In that case the Court of Appeal formulated the test to be applied in cases of bias. The test was put in these terms:

"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair- minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the tribunal was biased."

That test was subsequently adopted by the House of Lords in Porter v Magill [2002] AC 357.

C2 The Importance of the Arbitration Agreement

22. The courts have repeatedly emphasised that the policy behind the 1996 Act was to ensure that the courts intervened as little as possible in the arbitration process. Thus, Clarke LJ, as he then was, in Celetem SA v Roust Holdings Limited [2005] 1 WLR 3, 555 said at paragraph 61:

"I entirely accept the submission that a central and important purpose of the 1996 Act was to emphasise the importance of party autonomy and to restrict the role of the courts in the arbitral process. In particular, the Act was intended to ensure that the powers of the court should be limited to assisting the arbitral process and should not usurp or interfere with it."

The same point was made more recently by Aikens J, as he then was, in Electrim SA v Vivendi Universal SA [2007] EWHC 571 Comm, in particular the comments at paragraph 67.

C3 The 1996 Arbitration Act

23. Section 24 of the 1996 Act provides as follows:

"(1) A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) 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 …

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

Section 33 of the 1996 Act imposes an express duty on the part of the arbitrator to act fairly and impartially as between the parties, to adopt procedures suitable to the circumstances of the particular case, and to avoid unnecessary delay or expense.

Finally, there is at section 40 of the 1996 Act an express obligation on the parties to co-operate so as to "do all things necessary for the proper and expeditious conduct of the arbitral proceedings".

24. In considering an application under section 24, the court can and should have regard to the Report on the Arbitration Bill by the Departmental Advisory Committee on Arbitration Law: see, for example, the judgment of Cresswell J in The Petro Ranger [2001] 2 Lloyds Reports, 348. This is one of many cases arising under the 1996 Act, and decided by the Commercial Court, in which this DAC report has been cited and relied on^[3]. Paragraph 106 of that report is in these terms:

"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 …"

25. It is also to be noted that there is no separate or supplemental requirement in bias cases for an applicant to show substantial injustice as well as bias. In ASM Shipping Limited of India v TTMI Limited of England [2005] EWHC 2238 (Comm), Morison J said there was no such additional requirement, because the evidence of apparent bias was, of itself, substantial injustice in relation to the arbitrator's further participation in the proceedings. He "profoundly disagreed" with the earlier case of Groundshire in which the judge had indicated to the contrary. This approach was followed by Colman J in Norbrook Laboratories v A Tank [2006] EWHC 1055 (Comm). He said that he agreed with the observations of Morison J and that:

"Where there is a sole arbitrator whose impartiality is shown to have been impaired to the effect that a fair-minded and properly informed and independent observer would perceive that there existed a real possibility of bias in any award already made, substantial injustice will normally be inferred and where an order is yet to be made, substantial injustice will normally be anticipated."

C4: Case Management

26. The CPR encourages proactive case management on the part of judges. Thus the courts will be slow to characterise decisions taken or comments made at the procedural stage by a judge as conduct at risk of being perceived as apparent bias. This "would be to subvert the proactive management of cases expected of judges under the CPR": Auld LJ in A–B v British Coal Corporation [2006] EWCA Civ 172.^[4] In my view, there can be, at least in general terms, no logical reason to differentiate in this regard between the proactive case management of a judge and the proactive case management of an arbitrator. The express duty under section 33 of the Arbitration Act mean that an arbitrator has just as great an obligation to achieve efficiency and speed as a judge.
27. With all of those principles in mind, I now turn to deal with the five specific criticisms of the arbitrator said to give rise to the conclusion that he was or would appear to a fair-minded and informed observer to be biased.

D. THE CRITICISMS OF THE ARBITRATOR

D1 The Failure to Adjourn the Preliminary Hearing

28. The principal complaint here is that the arbitrator changed the date of the first preliminary hearing to accommodate Amega, but then subsequently refused to adjourn the hearing to accommodate the Goels. However, it seems to me that this criticism simply does not stand up to analysis. ET required a change of date immediately on learning of the arbitrator's proposed dates of the 6^th and 13^th April. Furthermore, it quickly became apparent that those dates were also not convenient to the Goels. Thus the arbitrator was obliged by both parties to fix a new date, which is what he did.
29. The new date was 30^th April. That date was fixed over two weeks in advance. At no time was it suggested by the Goels that the new date was inconvenient to them. The first indication that they wanted an adjournment was made just a few hours before the meeting was scheduled to take place. The arbitrator was quite entitled to conclude that, in those circumstances, it was better for the meeting to go ahead. I am in no doubt that he would have made precisely the same decision if it had been Amega who had made a very late application to adjourn.
30. The other criticism is that the arbitrator should have adjourned the meeting when he discovered that, not only were the Goels not going to be present, but their solicitors did not have instructions. However, I consider it fanciful to suggest that, because the Goels had chosen not to instruct their solicitors to attend, the meeting should automatically have been adjourned. If that were right, an unscrupulous party could spin out arbitration indefinitely by the simple expedient of not giving his solicitors the necessary instructions.
31. In connection with this aspect of the application, two other matters need to be addressed. First, in my opinion, there is nothing in the criticism of the arbitrator's expression of surprise that the Goels had been able to communicate with him but not apparently with their own solicitors. That was on any view a surprising thing for the arbitrator to learn, and he was entitled to make the comment that he did. Much more importantly, that comment arose in the context of the arbitrator trying to find out how it was that the solicitors who had been instructed for some months, and who were supposed to be preparing for a hearing which had been fixed for over two weeks, did not have any instructions. The arbitrator received no answer to that enquiry, and even more surprisingly no answer is provided on the evidence before me. So the arbitrator was entitled to conclude that the fact that SGH did not have any instructions was an entirely self-inflicted wound, and that Amega should not have to suffer in consequence. Still further, because the arbitrator had the duty to get on with the arbitration under section 33 of the 1996 Act, and he had an entitlement to receive proper co-operation from the parties, he was justified in concluding that the right course was to go ahead with the preliminary meeting.
32. Secondly, the point must be made that this arbitration concerns a straightforward construction dispute. The directions to be discussed at the preliminary meeting were entirely procedural in nature. Solicitors were on the record as acting for the Goels. In my judgment, they could and should have attended anyway.
33. For all those reasons, there is nothing in this first alleged criticism of the arbitrator. There is certainly nothing which would lead a fair-minded and informed observer to conclude that there was a real danger that, because the arbitrator had gone ahead with the meeting he had fixed some time before, he was biased.

D2 The Formalisation of the First Procedural Order

34. It is alleged that the seven days granted to allow the Goels to make any points about the first procedural order was not long enough, because it did not take into account the fact that, shortly after their receipt of the draft order, the second firm of solicitors were now no longer involved on their behalf. In my judgment that criticism is wrong on the facts and misconceived in principle.
35. As to the facts, the arbitrator sent his letter and the draft procedural order before he learnt that the second firm of solicitors, SGH, were no longer instructed by the Goels. As to the principle, there was no need for him to reconsider the seven-day period once the Goels had dispensed with SGH's services. As noted, the arbitrator had an obligation to the parties to proceed with all reasonable speed and he had to ensure that Amega were not unduly inconvenienced for what might be termed the Goels' unconventional approach to arbitration. The seven-day period was only necessary at all because they had failed to attend the first meeting and, more importantly, they had failed to instruct their solicitors to represent them at that meeting.
36. In addition, I note that the Goels did not seek an extension of time of the seven-day period at any point between the arbitrator's notification of the draft order to them and the 25^th May. It is, I think, fanciful to accuse an arbitrator of bias for not extending time in circumstances where that extension of time was not even sought.
37. In any event, no issue can now arise in relation to the terms of that first order. The Goels' principal concern about the order was the date for the service of the defence and counterclaim, because that was the date that particularly affected them. As a result of their change of solicitors, they ultimately achieved an extension of time of two months for the service of their defence and counterclaim, to 19^th August 2010. Accordingly, there is nothing in the point that the first order was formalised with the date of 25^th May.
38. For all those reasons, it seems to me that no suggestion of bias can arise out of the draft first procedural order and the seven-day period that was granted to the Goels to make any representations about the contents of that order. The test in Re Medicaments is simply not made out.

D3 The Alleged Failings in relation to the Application to Stay in June 2010

39. The Goels complain that the arbitrator did not respond timeously to their application for a stay. The relevant facts are set out at paragraphs 10 to 18 above.
40. I do not accept that there was any delay on the part of the arbitrator. The Goels and MW had been aware for some time that they had until 30^th June for the service of their defence and counterclaim. They had not complained about that date and they had not said that they could not meet it. It was only in response to the arbitrator's enquiry as to whether they would in fact comply with that date that the request for the meeting was first made on their behalf. Thus the proactive approach was taken by the arbitrator, not by MW or the Goels. Furthermore, as noted, the request for the meeting stemmed not from the arbitrator, as MW alleged in their letter, but from MW themselves.
41. The arbitrator endeavoured to fix the date of that second preliminary meeting for either 29^th or 30^th June. It was the Goels or MW who refused that offer and who asked for a date that was beyond the date for the service of the defence and counterclaim. It was that delay that therefore led to the request for a stay of the arbitration on 28^th June. ET had a right to be heard on that issue and they opposed the stay on 29^th June. The arbitrator decided that he would not stay the proceedings on 30^th June, the day after ET's response. In such circumstances there can be no sustainable suggestion of delay, let alone bias, on the part of the arbitrator.
42. That is an important conclusion, given the emphasis which was given to this point in MW's letter of 30^th June alleging bias, referred to in paragraph 14 above. That was the letter in which it was said that the arbitrator "simply kept respondent in the dark". On analysis, that can be seen to be a grave distortion of what had actually happened.
43. To the extent that the decision not to stay the arbitration proceedings is itself said to evidence bias, I refute that submission in its entirety. The fair-minded observer would read the arbitrator's letter of 30^th June, which I have set out in paragraph 11 above, and conclude that the arbitrator had dealt fairly with a difficult situation which was entirely of the Goels' own making. Moreover, as I pointed out to Mr. Asif during the course of argument, had I been case-managing the arbitration, I would have insisted on seeing a properly pleaded defence before I had a meeting to discuss the issues raised by the Goels, and the best way in which those issues might be resolved.

D4 The Second Preliminary Hearing

44. It is next said that the arbitrator's indication that, if the Goels and MW refused to attend the second preliminary meeting on 5^th July, he would continue with the hearing in any event was evidence of bias. Again on any proper analysis that submission is unsustainable. The Goels had already refused to attend or be represented at the first meeting. This second meeting was only taking place because MW on their behalf had specifically requested it. If they chose not to attend or be represented at a meeting which they had first asked for, it would, so it seems to me, make a nonsense of the arbitration process if the arbitrator had simply cancelled the meeting altogether. The arbitrator was entitled to conclude that any non-attendance and non-representation on their part was deliberate and that the proper case management of the arbitration required the meeting to go ahead anyway.
45. Moreover, the arbitrator's indication that he would go ahead with the meeting, whether they attended or not, which is set out in paragraph 17 above, must be seen in context. At that point, all that had happened was that MW had indicated that they were reconsidering whether or not to attend. The arbitrator was positively encouraging them to attend and, as part of that process, was making it clear that the meeting would go ahead in any event. That was an entirely legitimate case management decision and one which was necessary in the light of the arbitrator's obligations under section 33.
46. I have already made the point that the Goels' non-attendance at the meeting that they had asked for, unaccompanied as it was by any explanation or excuse then or now, was indefensible. It seems to me that Mr. Cook is right to say that that was a clear breach of their obligations under section 40 of the 1996 Act.
47. A rather different allegation is made about the second meeting and its consequences. At paragraph 37 of Mr. Asif's skeleton, it says this:

"PW [the arbitrator's] record of the conduct of the preliminary hearing gives rise to the suspicion that the relationship between PW and ET is closer than it should be: in particular the phraseology 'Mr. Taylor and I noted …', 'Mr. Taylor and I were satisfied …'."

48. Although Mr. Asif rightly noted during the oral submissions that this was, as he put it, 'not the strongest point in the world', I am bound to say that I regret that this point was raised at all. It seems to me that to take what might be fairly characterised as a chancery lawyer's point, about the wording of a non-lawyer's note of a meeting, is very unfair to the non-legal arbitrator. All the arbitrator was doing was explaining that both he, and a solicitor of the Supreme Court, who owed a wider duty to the tribunal than simply the duty to his client, were satisfied that there had been no unfairness to the Goels. It was worded in this way in an attempt to explain to the Goels what had happened at the meeting and to reassure them that the matters had all been carefully considered, despite their absence. It was also designed to encourage them to engage, sooner rather than later, in the detail of the underlying dispute rather than focusing all their efforts and energy on what might properly be regarded as peripheral or procedural matters.
49. If, which I do not accept, a criticism can be made of that wording, it seems to me that Mr. Cook is right to say that the loose language arises directly from the Goels' insistence that this dispute had to be resolved in arbitration and not in court and that, also at the Goels' insistence, the arbitrator is a surveyor, not a lawyer. If you insist on your dispute being dealt with by a non-legal professional, you cannot subsequently complain if his or her language sometimes lacks the elegance and precision of Lord Phillips. Furthermore, of course, the letter was only necessary at all because of the Goels' failure to attend the second preliminary meeting in the first place.
50. A fair-minded and informed observer would not, I think, consider the wording of the arbitrator's note of the second preliminary meeting as indicating bias or anything like it. On the contrary, I am tempted to think that such an observer might have one or two uncomplimentary things to say about the point being raised in the first place.
51. The final issue raised in relation to the second meeting is that the subsequent order did not contain a seven-day period for comment on the part of the Goels. It seems to me that the arbitrator was quite entitled to conclude that the Goels were not entitled to such a concession, in view of their conduct which I have outlined above. In any event, I suspect that the arbitrator thought that if the Goels wanted yet further time, they would probably get it in one way or another, which is of course what happened.
52. The Goels could, of course, have sought an extension of the dates in the order, whether or not there was a seven-day comment period. They did not do so, confirming my view that this is an academic rather than a real point of substance.

D5 The Making of the Fifth Peremptory Order

53. The final complaint concerns the making of the unless order, and how this gave rise to a justifiable doubt as to the arbitrator's impartiality. I note that allegations of bias had already been made against the arbitrator by the time of the fifth peremptory order, and this application had already been launched. It seems to me therefore that this is something of a makeweight. But in any event, I do not accept that this criticism is well-founded. The arbitrator had been faced with a number of difficulties created by the Goels and yet still did not have from them anything remotely resembling a proper pleading. The making of a peremptory order in such circumstances was an entirely proper case management decision. Again the test in Re Medicaments is not made out.
54. Of course, as noted already, the making of the peremptory order did not preclude the Goels from seeking further time if they considered it appropriate. Again they failed to make any such application.

D6 Summary

55. For the reasons I have given above, I reject the five separate criticisms of the arbitrator. I am in no doubt that the case management decisions that he made were fair and reasonable. They do not begin to demonstrate a case of apparent bias in accordance with the principles that I have already set out.
56. It is, however, also necessary to consider the effect of the individual allegations when taken together. Sometimes, individual criticisms of bias may seem thin or weak, but when taken together they may amount to something more substantial. In the present case, however, I consider that the opposite is the case. When considered together, these allegations not only fail to amount to a case of apparent bias, but they give rise to the irresistible conclusion that the Goels have set out on a deliberate course to create the maximum disruption and difficulty in the arbitration, of which this application is simply the most recent manifestation.

E. CONCLUSIONS

57. For the reasons set out above, I am in no doubt that this application must be refused. It is entirely without merit. A fair-minded observer would conclude that there is no suggestion of bias on the part of the arbitrator and that he had conducted himself properly in the face of what I consider to be considerable provocation.
58. I hope it is apparent from what I have already said that, in my view, this application was hopeless from the outset. I regret that, instead of concentrating on the substantive issues between the parties, whatever they might be, the Goels have wasted so much time and money on such an unproductive course of action. I will deal separately with all questions of costs.
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Note 1   One of the many ironies in this unfortunate case is that, having obtained their stay, the Goels are now unhappy that they cannot, without Amega’s consent, join the architect into the arbitration proceedings upon which they have insisted.    [Back]

Note 2   I am bound to say that, in my view, such discourtesy to the arbitrator was inexcusable.     [Back]

Note 3   See for example Egmatra AC v Marco Trading Corp [1999] 1 Lloyds Rep. 862    [Back]

Note 4   The precise words used by Auld LJ in making this point need to be noted. Mr. Asif is right to say that the words in the judgment have been slightly altered in the citation of the case at page 2315 of Volume 2 of the White Book 2010. However, their effect seems to me to be unaffected by the paraphrase.     [Back]