Adjudicators—bias issues when without prejudice material is deployed before them (AZ v BY)

Article summary

Dispute Resolution analysis: Without prejudice (WP) material was placed before an adjudicator in order to persuade him that a contract had been reached in consequence of negotiations conducted under the WP umbrella. Such material is admissible when it evidences a contract reached as a result of the underlying negotiations. However, where the WP correspondence has not resulted in an agreed settlement which has replaced the original dispute about which the parties were negotiating, the decision-maker, having seen the without prejudice material, must then assess their own ability to go on to decide the remaining dispute fairly, in accordance with the principles which govern apparent bias and the rules of natural justice. The judge concluded that the fair-minded and informed observer considering all of the circumstances of this case would conclude that there was a real possibility that, having seen the WP prejudice material, the adjudicator was unconsciously biased. The court thereby refused to enforce his decision. Written by...