Lights, camera, apparent bias: Arbitrator successfully challenged in film industry arbitration

In the recent decision in H1 and another v W,D and F [2024] EWHC 382 (Comm), the English High Court granted an application under section 24(1)(a) of the Arbitration Act 1996 (the 1996 Act) to remove a sole arbitrator (the Arbitrator) on the grounds of apparent bias. The application primarily concerned comments made by the Arbitrator, who was an industry professional without previous experience sitting as an arbitrator, in relation to the parties' witnesses and his approach to the expert evidence in the case. In upholding the challenge to the Arbitrator, the Court found that some of the Arbitrator's remarks gave rise to an appearance of having pre-determined a key issue in dispute; others were "unfortunate and misguided" but did not give rise to an appearance of bias.

Background

The underlying arbitration concerned a claim under an insurance policy (the Policy) brought by a film company and a film production guarantor (the Film Producers) and their insurer (the Insurer). Following a stunt-related incident on set, the Film Producers submitted a claim under the Policy, concerning the additional expense arising from consequential delays in production. Following the Insurer's rejection of the Policy claim, the Film Producers commenced arbitration proceedings. The British Film Institute nominated the Arbitrator, a non-lawyer and without previous arbitrator experience, based on his expertise in film and television programme production.

Following an initial procedural hearing, the parties exchanged factual and expert witness statements, addressing, amongst other things, who bore responsibility for safety on set during filming (the Responsibility Issue).

At a subsequent procedural hearing, the Arbitrator made a number of comments on the parties' witnesses and his views about the evidence relating to the Responsibility Issue, including that:

• He did not "need to hear any of the expert witnesses" as he "[knew] what they [were] saying" and "[knew] what is normal on film". Accordingly, he felt that he did not "need to listen to them" in cross examination;
• The Film Producer's experts were "exceptional people in their fields" and that he "[knew] them all personally extremely well" while one of the Insurer's experts did not "add… much";
• He would "absolutely believe" the evidence of the Film Producers' expert in relation to the Responsibility Issue on account of him being "one of the top Norwegian producers" even though his evidence contradicted the Arbitrator's own experience in other locations;
• While he would allow cross-examination and would "reserve…judgement", he had read the evidence and could "say now" what he thought; and
• The evidence of one of the Insurer's experts on the Responsibility Issue should be "disallowed" because he had "change[d] sides half-way through" and was a "gun for hire" (the Switching Side Comments).

In light of these and other comments, the Insurer brought an application before the English Court under s24 of the 1996 Act (the s24 Application) to remove the Arbitrator on the grounds of apparent bias. As emphasised by the Court, the Insurer's case was not that the Arbitrator was actually biased, but that his remarks gave rise to the appearance of bias.

Decision

Applying the test for apparent bias confirmed by the Supreme Court in Halliburton v Chubb Bermuda Insurance (see our blog post here and for further commentary relating to a subsequent decision applying Halliburton see here), the Court concluded that "the fair minded and informed observer would… conclude that there was at least a real possibility that the arbitrator was biased".

The Court accordingly ordered the Arbitrator's removal, while allowing the Arbitrator's fees and expenses up to the end of the procedural hearing where the comments were made. The Court additionally took the "exceptional" step of preserving the Arbitrator's anonymity, principally because revealing the name of the Arbitrator might "defeat the purpose of maintaining the confidentiality of the arbitration and the parties to it". Moreover, the Court determined there was "no public interest in revealing his identity".

Pre-determination gave rise to an appearance of bias

The Court found that the Arbitrator's remarks relating to "how he would approach the evidence of the expert witnesses" gave rise to "the appearance of bias in the sense of appearing to pre-judge [the Responsibility Issue] by reference to [the expert's] status". The Court considered that "the suggestion that it was unnecessary to call any expert witnesses was plainly not an expression of a balanced and impartial view, or merely a concern about the hearing over-running, or an attempt by the arbitrator to impose an orderly and economical procedure on the parties". Instead of "pre-judging the merits", the Arbitrator ought to have "[kept] an open mind as to whether or not the producer is responsible for the safety on set and whether the position in Sweden is different to the rest of the world". The Arbitrator's comments showed that he would believe the expert "come what may" on account on the expert being, in his view, "one of the top Norwegian producers".

The Court determined that a "fair minded and informed observer would not be reassured" by the Arbitrator's purported qualification that he would "reserve [his] judgement". This was because the comment preceded him stating that he had "read the statements and [knew] the professionals" such that he could "say now" what he thought. Given that the Arbitrator had read the evidence prior to the procedural hearing, it was clear that he knew the importance of the Responsibility Issue. Consequently, he would have been aware that the evidence on this point remained contested.

In the eyes of the Court, the Arbitrator had not merely indicated a legitimate "predisposition towards a particular outcome, giving the parties an opportunity to persuade him that his initial assessment of an issue may be wrong". Instead, the Arbitrator had given a "firm impression of having already allowed extraneous, illegitimate factors to influence his assessment of evidence which has not yet heard and, moreover, of not even realising that this this is an unfair approach to adopt". This was of particular concern because the Arbitrator was "a sole inexperienced arbitrator ([acting] without the tempering influence of two other co-arbitrators)". This was the case notwithstanding the Court's acknowledgement that "the parties might expect the arbitrator to use his special knowledge of the film industry to understand the evidence that is given at the arbitration and any usages of the trade".

No appearance of bias

While the Insurer had initially also relied on comments made by the Arbitrator regarding the nature and extent of his relationships with the Film Producers' experts, in light of the evidence given by those experts in response to the s24 Application, counsel for the Insurer accepted that the relationships did not give rise to an appearance of bias. On the facts, the relationships were "entirely to be expected of 'an experienced practitioner in… television programme production' who has been in the market for some time".

Similarly, the Court found that that while the Switching Side Comments were "unfortunate and misguided", they did not give rise to an appearance of bias. This was primarily because (i) the comments had been wrongly encouraged by counsel for the Film Producers; (ii) the Arbitrator in fact made no formal decision to disallow the evidence; and (iii) the remarks were attributable more to a lack of experience than closed mindedness or "animus" against the Insurer.

Comment

The decision is a useful illustration of an approach to evidence which "[fell] well short" of the standard expected of an arbitral tribunal. Whilst this case is unusual on its facts, it demonstrates the importance of appointing arbitrators who are not only experts in the relevant field, but who are also comfortable with arbitral procedure and best practice.

This judgment also serves as a reminder of the importance of taking accurate and sufficiently detailed attendance notes for non-transcribed hearings. In this case, the Court was greatly assisted by the notes prepared by the parties' legal representatives, without which the challenge may not have been sufficiently evidenced.

For more information, please contact Mike McClure KC, Partner, Liz Kantor, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.

The authors would like to thank Luke Hard and George Maxwell for their contributions to this blog post.