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Cite as: [2000] 1 WLR 113, [1999] EWHC B3 (Comm)

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Neutral Citation Number: [1999] EWHC B3 (Comm)
Case No. 1999 Folio 71

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

St Dunstan's House
20 April 1999

B e f o r e :

Mr Justice Rix
____________________

IN AN ARBITRATION APPLICATION

LAKER AIRWAYS INCORPORATED
Applicant
- and -

FLS AEROSPACE LIMITED
Respondent
- and -

STANLEY JEFFREY BURNTON
Respondent
AND IN THE MATTER OF AN ARBITRATION

FLS AEROSPACE LIMITED
Applicant
- and -

LAKER AIRWAYS INCORPORATED
Respondent

____________________


Laker Airways Inc did not appear and were not represented.
Mr M Sullivan, instructed by Messrs Watson Farley & Williams, London, EC2A 2HB, appeared on behalf of the First Respondent.
Mr G Leggatt QC appeared on behalf of the General Council of the Bar of England & Wales.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Rix:

    The question in this application brought under the Arbitration Act 1996 is whether a barrister who has been appointed an arbitrator by one party to the arbitration should be removed by the court on the ground that another barrister from the same chambers has been instructed in the arbitration by the appointing party. Put in the terms of section 24(1)(a) of the Act, the question is whether -

    "circumstances exist that give rise to justifiable doubts as to his impartiality".

    The application to remove the arbitrator has been brought by Laker Airways Incorporated ("Laker"), which is respondent in the arbitration. The claimant in the arbitration, first respondent here, is FLS Aerospace Limited ("FLS"). There are also concurrent proceedings in court. Both arbitration and action arise out of the performance by FLS of maintenance services on Laker aircraft. Part of FLS's claim has gone to arbitration because of an IATA arbitration clause incorporated into one schedule of the contract between FLS and Laker. There are counterclaims by Laker. The details of their disputes are not material for present purposes. The IATA clause provides that the arbitral tribunal should settle its own procedure "and if necessary decide the law to be applied".

    FLS appointed Mr Stanley Burnton QC as their arbitrator on 23 September 1998. At that time Mr Michael Sullivan, who had recently joined 1 Essex Court, the set of chambers where Mr Burnton also practises, had already been instructed in the dispute on behalf of Laker. As a new member of those chambers, following a transfer from other chambers, Mr Sullivan had not then met, and did not know, Mr Burnton. The first query relating to Mr Burnton's appointment arose in a letter dated 30 November 1998 from Laker's US attorneys, Bode & Beckman LLP. Mr Robert Beckman was there responding to a query raised by FLS's solicitors as to the suggested nomination of a third arbitrator who had apparently worked at some time in the same US federal agency as Laker's chief executive. Mr Beckman's response was to ask whether it was true that Mr Sullivan and Mr Burnton practised in the same chambers. When it was confirmed that that was so, Mr Beckman requested FLS to make a new appointment, referring in his fax to "Mr Burnton's law office". FLS's solicitors explained that barristers are self employed, but share office space and clerks: they pointed out that Mr Burnton's independence could not be questioned, and suggested that Mr Beckman's request was part of a campaign to delay the arbitration.

    Unfortunately, the progress of the arbitration has not run smooth, and there have been disagreements about whether its seat should be in the USA or the UK and as to which curial law should apply. Indeed, the arbitral tribunal has not yet been constituted. Laker's arbitrator, who was appointed in November 1998 following a deadline imposed by IATA, resigned around 20 January 1999 after it was alleged that he and Mr Beckman had been in private correspondence with one another. No third arbitrator has yet been chosen.

    In the meantime, Laker's then London solicitors, Messrs Lee & Pembertons, wrote on 22 December 1998 to Mr Burnton, asking him to resign. Their letter said that FLS had a justifiable concern that the presence of Mr Sullivan and Mr Burnton in the same set of chambers might colour Mr Burnton's view of the arguments, and further that "Chinese walls" within chambers might be insufficient to prevent the passing of information or the holding of informal discussions within chambers of which Laker would be ignorant. They added:

    "You will appreciate that our client perceives matters from an American point of view and it is important that that should be taken into account."

    Mr Burnton replied on 4 January 1999. In a careful but firm letter, he offered to resign if requested to do so by both parties, but declined to do so on the request of one party only. He said:

    "...to resign on the basis of one party's wholly unfounded suggestions of bias or impropriety would give that party a veto over the other's appointment, as well as give credence to unfounded suggestions of impropriety."

    Laker made its application on 20 January 1999. Mr Burnton as well as FLS was made respondent. The grounds stated are that

    "circumstances exist that give rise to justifiable doubts as to Mr Burnton's impartiality, the circumstances being that he practises at the Bar from the same set of Chambers as the advocate instructed in the arbitration and in parallel litigation on behalf of FLS...Full particulars of these circumstances and the doubts which arise therefrom appear from the Affidavit of Thomas Bolkenhol..."

    Mr Bolkenhol is the president of Laker. His affidavit states that Laker "strongly doubts Mr Burnton's impartiality". He argues that Laker is a US company, and that in the US it would be impermissible and unthinkable for two lawyers "from the same firm" to assume roles in the same matter where an actual or potential conflict of interest arises. Mr Burnton's position as a member of the arbitral tribunal could not be regarded as just, and the decision of such a tribunal would not be respected in the US as rendered by a just and impartial tribunal. His understanding was that in practice there is little difference between a set of chambers and a US law office in that barristers share administration, a common library, a common store room, promote the employment of their fellows, socialise, and hold themselves out as a group sharing special expertise. There was a conflict of interest between Mr Burnton and Mr Sullivan in their respective duties in the arbitration. There was no organisational structure in chambers designed to prevent the intentional or accidental transmission of information between them, including confidential information. Finally, Mr Bolkenhol said that Mr Burnton and Mr Sullivan are well known to each other and that Mr Burnton's approach to the dispute may be coloured by his familiarity with Mr Sullivan.

    I have set out the substance of Mr Bolkenhol's affidavit both because it contains the particulars of Laker's grounds for invoking section 24(1)(a) of the Act and also because in the event Laker was not represented at the hearing before me. Lee & Pembertons had come off the record as its solicitors shortly before the hearing, and Laker has instructed no new solicitors to advance its application.

    Mr Burnton made an affidavit in response (but did not attend the hearing). He stated that he had not known Mr Sullivan before the latter had joined 1 Essex Court. Since then he had not spoken to him more than half a dozen times. Their rooms are in different buildings. They are clerked by different teams of clerks. Their documents are kept in different rooms. They do not have access to each other's computers. It is common for members of their chambers to appear on different sides in the same litigation, as is the case in all large sets of commercial and other specialist chambers. Their administrative staff is experienced in dealing with that situation and in ensuring no misdelivery of documents or leakage of information. There had never been an incident in chambers of such misdelivery or leakage.

    As a result of Mr Burnton informing the chairman of Combar, the Commercial Bar Association, of the application made against him in these proceedings, news of it came to the attention of the Vice-Chairman of the Bar of England and Wales, Mr Jonathan Hirst QC. Mr Hirst wrote to me, as judge in charge of the Commercial List, with the prior knowledge of all parties, on 15 March 1999, to inform me that the issue raised by Laker was regarded as one of public importance in the administration of justice: in that if membership of the same chambers were to cause barristers instructed on different sides of the same case to have a conflict of interest which prevented their acceptance of such instructions, then the public interest would be harmed since public access to a pool of barristers, particularly in specialist fields, would be considerably reduced. He asked if I would wish to hear oral submissions from the Bar Council. I answered by saying that I was inclined to accept that the Bar Council should be permitted to address submissions to the Court, if it wished to do so, but that the ultimate decision must rest with the judge who heard the application. As it has transpired, the matter has been listed before me and I have permitted Mr George Leggatt QC, on behalf of the Bar Council, to address written and oral submissions to me: see R v. Chief Constable of the North Wales Police, ex parte AB [1998] 1 WLR 57 at 66G, where Lord Woolf MR endorsed the validity of the conclusions of the Justice Public Law Project chaired by Laws J on "A matter of public interest, reforming the law and practice on interventions in public interest cases" (1996). I accept that the Bar Council, as the governing body of the Bar, has a substantial interest in the question raised by this application, especial experience of the issues of public interest involved, as well as a perspective distinct from that of the immediate parties.

    Mr Sullivan has addressed me on behalf of FLS, but Laker, as I have mentioned above, was not represented.

    In the absence of Laker, the applicant in these proceedings, it seems to me that this application should be dismissed. Laker's non-appearance to support its own application is tantamount to its withdrawal. In my judgment it should therefore be dismissed, with costs.

    Nevertheless, in the light of the important issues raised, and the fact that this court is vested with a supervisory, albeit limited, jurisdiction over arbitration and therefore in that context is concerned with the administration of justice, and in the light of the submissions I have read and heard from Mr Sullivan and Mr Leggatt, I do not think I should leave this case without expressing my views about the issue before me. In doing so, I am very conscious that I have not had developed before me the submissions that might have been advanced in support of Laker's application and in reply to the arguments of Mr Sullivan and Mr Leggatt. To that extent, if these matters had to be debated on another day in another case, it could fairly be said that I laboured under the real disadvantage of the absence of adversarial argument.

    Arbitration is a consensual process and therefore it is perhaps particularly unfortunate that one party should feel any apprehension about the impartiality of an arbitrator. Nevertheless, arbitration would become impossible if one party could require an arbitrator to retire by making unjustified allegations about impartiality or bias. The circumstances in which an arbitrator can be removed are therefore defined in section 24 of the Act. The test is an objective one - whether circumstances exist that give rise to justifiable doubts as to an arbitrator's impartiality. The test is thus objective in at least two respects: the court must find that circumstances exist, and are not merely believed to exist (although I suppose that a belief may itself be a circumstance); and secondly, those circumstances must justify doubts as to impartiality. An unjustifiable or perhaps unreasonable doubt is not sufficient: it is not enough honestly to say that one has lost confidence in the arbitrator's impartiality. On the other hand, doubts, if justifiable, are sufficient: it is not necessary to prove actual bias.

    This test appears to me to reflect the common law in England regarding questions of bias. Indeed, it would be strange if the test in arbitration were different from that which applies generally in the administration of justice. It appears from the recent cases of R v. Gough [1993] AC 646 and of R v. Bow Street Magistrate, ex parte Pinochet (No 2) [1999] 2 WLR 272, that there are at least three principles at work. First, actual bias will of course always disqualify a person from sitting in judgment. Even in the absence of actual bias, however, the importance of public confidence in the administration of justice is such that even the appearance of bias will disqualify. As Lord Browne-Wilkinson said in Pinochet (No 2) at 284B:

    "There is no room for fine distinctions if Lord Hewart C.J.'s famous dictum is to be observed: it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done:" see Rex v. Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259."

    Therefore, either under the rubric of apparent bias or as a fundamental principle separate from that doctrine (see Lord Browne-Wilkinson at 281D/E and 281H, Lord Goff of Chieveley at 287H, Lord Nolan at 288A, Lord Hope of Craighead at 290F/G, and see R v. Gough at 661F) the second rule is that no one must be judge in his own cause (nemo judex in sua causa). That rule covers any situation where a judge is a party to the case or has a pecuniary or proprietary interest in it or, as in the very unusual circumstances of Pinochet (No 2), is so closely connected with a party to the proceedings that he may be said to be acting in his own cause. In such a case disqualification is automatic and there is no question of investigating whether there is a likelihood or even suspicion of bias.

    Thirdly, and either another aspect of apparent bias or the principle which is properly called apparent bias, there is the rule for which R v. Gough is the modern authority, namely that a judge is disqualified if there is a real danger that he is biased. Thus, as Lord Goff said at 670C/F:

    "In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man: and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him..."

    In my judgment, I should direct myself by these principles. It seems to me that the test laid down in section 24 reflects the test in R v. Gough. Plainly, if that test were met, there would be no need in any event to go on to ask whether there was actual bias. I would accept, however, that the three principles apply equally to arbitration, even though it might be said that only the third of them is expressly reflected in the wording of section 24(1)(a).

    In the present case it is plain that no allegation of actual bias has been made against Mr Burnton. It is right that I should equally plainly state that there is no question at all of actual bias on Mr Burnton's part.

    Nor does it seem to me that the principle of nemo judex in sua causa has been invoked. The highest that Mr Bolkenhol's affidavit puts the matter is that there is a connection through chambers between Mr Burnton and an advocate in the arbitration and that Mr Burnton's views may be "coloured by his familiarity" with that advocate. It seems to me, however, that there is of course a difference in principle between an advocate and the party which he or she represents. It does not seem to me that a judge can be said to be judge in his own cause because he knows the advocate, even if he knows him well, or shares or has shared tenure in the same set of chambers with him.

    If, therefore, Laker's complaint were to be made good, it seems to me that it would have to be under the third principle, that of apparent bias expressed in the terms of section 24(1)(a). In this connection it is relevant to record what the Departmental Advisory Committee on Arbitration Law, chaired by Lord Justice Saville, as he then was, said in their Report in February 1996 on the Arbitration Bill (the "DAC Report") at paragraphs 101/104:

    "101. The [UNCITRAL] Model Law (Article 12) specifies justifiable doubts as to the independence (as well as impartiality) of an arbitrator as grounds for his removal. We have considered this carefully, but despite efforts to do so, no-one has persuaded us that, on consensual arbitrations, this is either required or desirable. It seems to us that lack of independence, unless it gives rise to justifiable doubts about the impartiality of the arbitrator, is of no significance. The latter is, of course, the first of our grounds for removal. If lack of independence were to be included, then this could only be justified if it covered cases where the lack of independence did not give rise to justifiable doubts about impartiality, for otherwise there would be no point including lack of independence as a separate ground.

    "102. We can see no good reason for including "non-partiality" lack of independence as a ground for removal and good reasons for not dong so. We do not follow what is meant to be covered by lack of independence which does not lead to the appearance of partiality. Furthermore, the inclusion of independence would give rise to endless arguments, as it has, for example, in Sweden and the United States, where almost any connection (however remote) has been put forward to challenge the "independence" of an arbitrator. For example, it is often the case that one member of a barrister's Chambers appears as counsel before an arbitrator who come from the same Chambers. Is that to be regarded, without more, as a lack of independence justifying the removal of the arbitrator? We are quite certain that this would not be the case in English law. Indeed the Chairman has so decided in a case in Chambers in the Commercial Court. We would also draw attention to the article "Barristers' Independence and Disclosure" by Kendall in (1992) 8 Arb. Int. 287. We would further note in passing that even the oath taken by those appointed to the International Court of Justice, and indeed to our own High Court, refers only to impartiality.

    "103. Further, there may well be situations in which parties desire their arbitrators to have familiarity with a specific field, rather than being entirely independent.

    "104. We should emphasize that we intend to lose nothing of significance by omitting reference to independence. Lack of this quality may well give rise to justifiable doubts about impartiality, which is covered, but if it does not, then we cannot at present see anything of significance that we have omitted by not using this term."

    Clearly, therefore, it was not in the minds of the draftsmen of the Act that an arbitrator's impartiality could be questioned merely because he came from the same chambers as counsel.

    The reference in paragraph 102 of that Report to Lord Justice Saville's decision in the Commercial Court is a reference to Pilkington plc v. PPG Industries Inc (unreported, 1 November 1989). Strictly speaking, the question in that case was not whether an arbitrator was disqualified or could be removed by reason of sharing tenure in the same set of chambers as counsel, but rather whether such joint tenure should affect the court's discretion in the choice of a replacement arbitrator under section 10 of the Arbitration Act 1950. The submission was the limited one that, in the complete absence of any impartiality in fact, -

    "nevertheless the appearance of some form of partiality might be apparent to his clients, Pilkington."

    Saville J, as he then was, continued (at page 5):

    "I reject that suggestion. Pilkington are not strangers to arbitration or litigation. their counsel will, I have no doubt, be able to assure Pilkington that the fact that an arbitrator comes from the same chambers as one of the counsel involved in the case will not to any degree whatever influence that arbitrator in the conduct of the arbitration."

    A more extensive submission, and one not dissimilar to the grounds relied on by Mr Bolkenhol in this case, was rejected by the court of appeal in a case which went on appeal from the decision of a barrister sitting as a deputy official referee: see Nye Saunders and Partners v. Alan E Bristow (1987) 37 BLR 92. One ground of appeal was that justice had not been seen to be done because the deputy judge had come from the same chambers as counsel, that the case might have been discussed in chambers, and that the appellants had learned of the connection too late to object. There was no allegation of actual bias. Stephen Brown LJ, with whose judgment the other members of the court agreed, after distinguishing R v. Essex Justices [1927] 2 KB 475, gave the submission short shrift (at 111/2):

    "There has been no suggestion that he had ever been consulted by any of the parties to this case and there is no evidence or indeed direct suggestion, that he had in fact been consulted or had discussed the matter with Mr Keating. The complaint is based on mere suspicion. The position is that Mr Keating is not a member of a firm: he is a recorder; he is one of the judges of the land who has taken the judicial oath (in point of fact he is also a distinguished Queen's Counsel); and it is to be accepted in my judgment that a recorder acting, as he was doing, as a judge of the High Court would inevitably, had he felt that there was any possible ground for conflict or any possible basis for considering that he had previously exhibited any interest in the case of any kind, have excused himself from undertaking or proceeding with the matter. I venture to suggest that, if counsel for the appellant than acting (not Mr Melville Williams) had thought that there was any likelihood of any conflict of interest or any embarrassment of any kind, he would have raised it at that stage. In point of fact the trial continued for a further seven days or so. I say that I regret that this ground of appeal has been raised because in my judgment in this case it is wholly without substance and appears more, on the fact of it, to be mischievous."

    That case arose entirely within a domestic (national) context, and it may be observed that Saville J himself emphasised the familiarity of Pilkington (an English company) with the domestic scene. It is for that reason that I am particularly impressed by a decision of the Paris court of appeal in KFTCIC (Kuwait Foreign Trading Contract & Investment Company) v. Icori Estero Spa (unreported, 29 June 1991), of which I have been provided with an informal translation. That case arose out of an arbitration award made in Paris by a three arbitrator tribunal presided over by an English barrister. The losing party appealed inter alia on the ground that the president of the tribunal was not independent of the parties because he came from the same set of chambers as one of the counsel in the arbitration. This ground of appeal was rejected. The court of appeal reasoned as follows:

    "Considering that the independence of an arbitrator is essential to his jurisdictional function and must be exclusively arms length, in particular, of the parties;

    "Considering that the circumstances arising to challenge this independence must characterise, by the existence of physical or intellectual ties with one of the parties to the proceedings, a situation of such a nature as would affect the judgment of that arbitrator by the appearance of a definite risk of pre-disposition towards one party to the arbitration;

    "Considering that the arbitrator's duty to inform the parties in order that they may exercise their right of objection must be determined with regard to both the significance of the situation in question and of its impact on the arbitrator's judgement;

    "Considering that, in this instance, it is apparent from elements of the dispute (especially from the translation of an extract from the work "International Commercial Litigation"; from the memorandum drafted by the London firm of solicitors, Masons, for the Appellant, and the statements of Mr. Anthony Scrivener, Barrister and Edward Singleton, Solicitor) that the function of a barrister is essentially carried out independently and that belonging to a set of chambers of barristers - an age old institution unique to the British system - is characterised, in essence, by the sharing of premises and support staff, without necessarily creating any professional ties, which would imply - such as in the French Law Society for example - common interests or a certain economic or intellectual dependence between various members of a set of chambers who are, between themselves, frequently called, usually because of the specialism of the chambers, to plead against each other or to participate in arbitral tribunals before which other members of the same set of chambers may appear in the capacity as counsel;

    "Considering that if no other objective element existed in the current case which would have affected the independence of the President of the arbitral tribunal; from the single fact that a member of the same set of chambers acted as counsel to one of the parties, this situation creates no tie of dependence between the arbitrator and that particular party to the arbitration proceedings;

    "Considering that if it is established that the Appellant and its counsel were not aware of the fact that the President of the arbitral tribunal belonged to the same set of chambers as counsel to the Respondent, the Appellant cannot have grounds against the arbitrator for not having revealed a situation which was not, in itself, of such a nature as would affect his judgment and could exist without affecting the exercise of his jurisdictional function;

    "Considering that, in these circumstances, it is not established in this instance that the arbitrator referred to in the appeal had not disposed of the independent spirit necessary for the exercise of his jurisdictional power; these being the conditions necessary to invalidate the constitution of the arbitral tribunal or to constitute an infringement of the principle of equality of the parties and respect of the rights of defence;

    "That the first two grounds are without basis."

    I have set out the judgment of the Paris court of appeal at some length because it represents the reasoning of a foreign court faced by evidence of the English legal scene; because that court was required under the relevant law to consider not only the question of impartiality but also that of independence; because the parties to that arbitration were both foreign to England; and because the Paris court of appeal has great experience in this field since the presence in Paris of the International Chamber of Commerce (ICC) makes Paris one of the world centres of international arbitration.

    It would seem that part of the material before the Paris court was a statement made by Sir Michael Kerr, who has had at bar and bench and as an arbitrator since his retirement unsurpassed experience in international arbitration. He there describes the structure and organisation of the bar in familiar and, if I may say so, accurate terms, eg that it is a fundamental principle that the barrister practises individually despite being a member of a set of chambers, that he is instructed separately in respect to each assignment, that while he shares administrative expenses he does not share his income or profits, and that in this context it has long become an everyday occurrence for a barrister to appear against a member of his own chambers, or for other members of his chambers to appear before him (or vice versa) whether in the role of arbitrator or deputy judge or recorder.

    In his statement Sir Michael Kerr also referred to an arbitration held under LCIA (London Court of International Arbitration) Rules in which the continuation as arbitrator of an English barrister was challenged on the ground that counsel in the same chambers was instructed in the case. Under the Rules the challenge had to be decided by a special tribunal composed of three members of the LCIA Court of Arbitration. The members of this tribunal were the director of the Austrian Chamber of Arbitration, a distinguished Dutch lawyer and editor of leading works on international arbitration, and an English QC. They unanimously rejected the challenge, holding that

    "The fact that [the English arbitrator] is located in the same Chambers as Counsel for the Respondent is no sufficient ground to give rise to justifiable doubts as to his impartiality or independence."

    The reference to impartiality and independence reflected the wording of Rule 3.1 of the LCIA Rules, which says that "all arbitrators shall be and remain at all times independent and impartial..." This decision is also referred to in John Kendall's article in Arbitration International (1992) Vol 8 No 3 at 287 entitled "Barristers, Independence and Disclosure", which the DAC Report cited at paragraph 102 supra.

    It is to be observed that both the Paris court of appeal and the LCIA tribunal composed of leading international arbitrators from LCIA's Court of Arbitration, even while considering the challenges that arose before them from the point of view of independence as well as impartiality, concluded that no difficulty arose from the appointment of an arbitrator and the instruction of counsel in the same case who were members of the same chambers.

    If I turn next to the points made in Mr Bolkenhol's affidavit, they may be said to amount to the following: (i) that there is an inherent conflict of interest between arbitrator and counsel which prevents the arbitrator from acting as such with impartiality; (ii) that there is a risk that information may be transmitted between arbitrator and counsel; and (iii) that the arbitrator's judgment may be coloured by his familiarity with counsel.

    It is to be noted that it is not alleged that there is any financial interest involved which may affect the arbitrator's impartiality. Thus Mr Bolkenhol does not even make mention of the well known fact that barristers share the expenses of chambers, only that they "share administration". This may be contrasted with Mr Beckman's letter to FLS's solicitors dated 4 December 1998 in which Mr Beckman refers to the sharing of expenses and submits that this means that "Mr Burnton and Mr Sullivan have a common economic interest which alone is disqualifying". I am not surprised that this point was not persisted in. The fact that members of chambers share expenses does not mean that they have a financial interest in the outcome of each other's cases. Counsel do not share fees ir profits. Nor, which is a different point again, does the fee of either counsel (at any rate under traditional fee arrangements) or of course arbitrator depend on the outcome of the proceedings.

    Mr Bolkenhol's first point regarding a conflict of interest between counsel and arbitrator is misconceived. Of course there is a conflict of interest, or more properly speaking duty, between them. It is the duty of counsel to advance the case of his client within the limits of his professional responsibilities, while it is the duty of the arbitrator to adjudicate impartially between the parties. A conflict of interest properly so called only arises as an impediment when the same person (or what is in law regarded as the same person) undertakes conflicting duties to different clients or puts himself in a position where he has a conflict between his duty to his client and his own self-interest. That would occur if barristers were employed by the same organisation or were all partners of one another in the same firm and then sought to appear against or before one another. It is the essence of practice at the bar, however, that this is not so: barristers are all self-employed. This is not a mere matter of form. On the contrary, practising barristers are prohibited by the rules of their profession from entering partnerships or accepting employment precisely in order to maintain the position where they can appear against or in front of one another. If it were otherwise, public access to the bar would be severely limited: each time a member of a set of chambers accepted instructions, he would debar any other member of those chambers, although independently practising self-employed barristers, from accepting instructions from any other party with a different interest in the dispute; nor would he be able to appear before a recorder, deputy judge or arbitrator in the same proceedings. This would be a severe limitation on the administration of justice in this country. Especially in the context of specialist legal services, where it may be that only a handful of chambers practise within a particular specialty, it would mean that public choice of counsel would be drastically cut. Of course, this would be by the way if the rule were that the doctrine of conflict of interest prevented barristers at the same chambers from appearing against one another. But such a rule has never been recognised, and the contrary practice is an every day occurrence in the courts, as has been recognised in the authorities referred to above.

    Mr Bolkenhol's second point, regarding the risk of transmission of information between barristers in the same set who are on opposite sides of a dispute, or who are counsel and tribunal in the same proceedings, is in legal theory tied up in the same considerations. Were barristers partners of one another, or fellow-employees, then it may be that even "Chinese walls" of the most successful kind would not be enough to prevent a conflict of interest arising out of the danger that obligations of confidence would be prejudiced: see Prince Jefri Bolkiah v. KPMG [1999] 2 WLR 215. Since, however, barristers are independent self-employed practitioners, it seems to me that if an applicant wished to complain because of instructions given to two members of the same chambers on either side of the case, the burden would lie on him to show a quia timet case of breach of confidentiality. (It would be different of course if the same counsel were instructed first by one party and then by its opponent). For the purposes of section 24(1)(a) of the Act, the applicant must show that the organisation of chambers gives rise to justifiable doubts about an arbitrator's impartiality because of the danger of accidental or improper dissemination of confidential information or because of the danger that the arbitrator will not observe the rule against holding conversations with only one party outside the presence of all parties to the arbitration.

    For these purposes, I do not accept that Laker has shown such a case. On the contrary, Mr Burnton's affidavit is to the effect that nothing of such a nature has ever been known in his chambers. For good measure, he has explained how his papers and Mr Sullivan's papers are kept in separate rooms, and that their rooms are in separate buildings. Even in the absence of such evidence, however, I believe that I could take judicial notice of the fact that I am aware of no case in which a problem has arisen due to the improper transmission of information between members of chambers.

    I refer further to the case of Bolkiah v. KPMG because it was mentioned in correspondence by Mr Beckman. That case concerned a firm of accountants who had undertaken work for Prince Jefri on a massive scale involving 168 KPMG personnel (see at 220B) and who now sought to act for the Government of Brunei in investigations which were contrary to the interests of Prince Jefri. Lord Millett spoke of the unqualified duty to preserve confidentiality and the need for a former client to be protected completely from the acceptance of instructions to act for another client with an adverse interest (at 225H). This is the language of conflict of interest. In this context, which as I have said above is different from the context of chambers with its self-employed individuals, Lord Millett said this (at 226H):

    "I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial."

    Even if I ask myself whether Laker has brought itself within this test, and I have said above I do not believe that it is the applicable test, it seems to me that on the evidence I am entitled to say that the risk spoken of by Mr Bolkenhol is a fanciful or theoretical one. Moreover, I have already said that, on the test set out in section 24(1)(a), Laker has failed to my mind to show that there are justifiable doubts about Mr Burnton's impartiality on the ground of the alleged possibility of accidental or leaked disclosure of information in either direction.

    Mr Bolkenhol's third point is that familiarity may colour Mr Burnton's judgment. On the particular facts of this case, it turns out that Mr Burnton and Mr Sullivan hardly know one another. That said, however, it remains the case that in any given specialty the bar's numbers, even in London, are not so great as to make it unlikely that counsel, and particularly senior and experienced counsel such as may well be appointed to an arbitral tribunal on the one hand or to represent a party in an important arbitration on the other, do not know each other well. But that is as much a matter of the daily routine of practice over many years as a reflection of the sharing of tenure in the same chambers. In any event, one barrister may be on better terms with a barrister in other chambers than with anyone in his own set. In a very true sense, however, the title of "learned friend" with which counsel refer to one another in court is more than an empty courtesy and represents the long established tradition of the bar. That has never been thought of as constituting a conflict of interest or as justifying doubts as to a tribunal's impartiality.

    Mr Bolkenhol also suggested, in another passage in his affidavit, that there is something of a collegiate atmosphere within a set of chambers, with members promoting the employment of their fellows, socialising with one another, and holding themselves out to clients as a group sharing a special expertise or experience. I do not think that one can generalise about such matters. Some chambers are happier places than others. In some, rivalry is the order of the day. After all, each barrister is in competition with his fellow for work. Rivalry and friendship may co-exist. Although it may be true that, with the relaxation in recent decades on the profession's attitudes to marketing, there has been a greater tendency for sets of chambers to promote themselves as a whole, it remains the case in my view that chambers are made up of their individual barristers with their separate reputations, each working on their own papers for their own clients, and sharing neither career nor remuneration.

    I have referred above to Kendall's article on "Barristers, Independence and Disclosure". At pages 296/7 of the article, reference is made to some American decisions on the subject. These decisions have not been cited to me and I have not therefore consulted them. From what is said about them in the article, they appear to be inconclusive.

    In conclusion, in considering the submissions of Mr Sullivan and Mr Leggatt I have sought to resist the temptation, to which a person, such as I, who has spent many years growing familiar with the English legal system may be prone, to assume that what is so familiar to me would be clear to foreign parties, or to overlook or underestimate concerns which such foreign parties may have. Thus I have borne well in mind that Laker is a foreign party. That is why I have been particularly assisted by the findings and conclusions of such foreign or international tribunals as the Paris court of appeal or the LCIA court of arbitration. Doing the best I can in the absence of submissions on behalf of Laker, I have come to the conclusion that, apart from the inevitable failure of the application before me in the absence of the applicant to maintain it, the grounds contained in it and developed in Mr Bolkenhol's affidavit are unsustainable.


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