Discuss the difference between Common Law and the Statutory Acts made by the Powers that be, (PTB)


Postby huntingross » Fri Mar 22, 2013 12:24 pm

Cantillon and Ltd and v and Urvasco and Ltd

58. During the course of argument the question arose as to whether parts of an Adjudicator's decision could be enforced and other parts not, in circumstances where the Adjudicator's want of jurisdiction or failure to follow the rules of natural justice only and obviously related to one part of the decision. There has been surprisingly little authority directly on the point. In Amec Capital Projects Ltd -v- Whitefriars City Estates Ltd [2005] BLR 1, Dyson LJ said this at paragraph 14:

"The common law rules of natural justice or procedural fairness are two-fold. First, the person affected has the right to prior notice and an effective opportunity to make representations before a decision is made. Secondly, the person affected has the right to an unbiased tribunal. These two requirements are conceptually distinct. It is quite possible to have a decision from an unbiased tribunal which is unfair because the losing party was denied an effective opportunity of making representations. Conversely, it is possible for a tribunal to allow the losing party an effective opportunity to make representations, but be biased. In either event, the decision will be in breach of natural justice, and be liable to be quashed if susceptible to judicial review, or (in the world of private law) to be held to be invalid and unenforceable."

AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWHC 393 (TCC)

111. There is now clear judicial authority as to how overall bias is to be judged. The test laid down by the House of Lords in Porter v Magill [2002] 2 AC 357 is set out in the speech of Lord Hope of Craighead at page 494. It follows the test set out by Lord Phillips of Worth Matravers MR in Re Medicaments [2001] 1 WLR 700, with one small amendment. The test is whether at the time when he gave his decision the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the adjudicator was biased. In Re Medicaments Lord Philips MR, at paragraph 86 on page 727, emphasised that:

"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 . . . that the tribunal was biased".

133. In Re Medicaments, at paragraph 37, Lord Phillips of Worth Matravers MR observed:

"Bias is an attitude of mind which prevents the judge from making an objective determination of the issues 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 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, predisposed a judge towards a particular view of the evidence or issues before him".
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