Newcastle United Football Company Ltd v Football Association Premier League Ltd & Ors

This decision concerns an application under section 24(1)(a) of the Arbitration Act 1996 to remove an arbitrator for apparent bias and an application under CPR r.62.10(1) for a public hearing of that challenge. The court applied the Porter v Magill objective test (the fair-minded and informed observer) as expounded in the authorities including Halliburton v Chubb, and considered disclosure obligations of arbitrators and the relevance of the International Bar Association Guidelines. The judge concluded that (i) the arbitration in issue was confined to whether the Kingdom of Saudi Arabia would be a "Director" under Section A of the Premier League Rules (and not a decision under Section F), (ii) the challenged prior advice (the 2017 advice) had been shown by the arbitrator and Premier League solicitors to have been limited to Section F and did not address the Section A definitions of "Director" or "Control", (iii) the prior appointments and the communications relied upon did not, alone or cumulatively, give rise to a real possibility of bias, and (iv) the default rule that arbitration claims are heard in private under CPR r.62.10 applied; accordingly the section 24 application failed and the application for a public hearing was dismissed.

This was a first instance hearing of two applications by Newcastle United Football Company Limited (NUFC): (i) an application under section 24(1)(a) of the Arbitration Act 1996 for removal of the chairman arbitrator on grounds giving rise to justifiable doubts as to impartiality (the Section 24 Application); and (ii) an application under CPR r.62.10(1) for the Section 24 Application to be heard in public (the Public Hearing Application).

The dispute arises from a Premier League provisional decision that the Kingdom of Saudi Arabia (KSA) would be a "Director" of NUFC for the purposes of the Premier League's Rules, by reason of control exercised through the Public Investment Fund (PIF). NUFC referred that decision to arbitration under the Premier League Arbitration Code. The tribunal chair (the second defendant) certified there were no circumstances giving rise to justifiable doubts as to his impartiality. Subsequently NUFC learned that the chair had advised the Premier League (and the English Football League) in 2017 on a possible amendment to Section F of the Rules, and that the chair had appeared in other arbitrations involving the solicitors for the Premier League. NUFC argued non-disclosure and the content and timing of private communications with the Premier League's solicitors created a real possibility of bias.

The issues framed by the court were: (i) whether the public hearing application should succeed given the default privacy of arbitration claims; (ii) whether the fair-minded and informed observer would conclude there was a real possibility of bias under the Porter v Magill test when considering (a) the 2017 advice, (b) prior appointments by the Premier League's solicitors, (c) non-disclosure by the chair, and (d) the private communications between the chair and the Premier League's solicitors.

The court's reasoning: (i) on the public hearing application the court emphasised that CPR r.62.10(3)(b) makes private hearings the default and that the open justice principle is outweighed here because the parties had agreed arbitration and the information in the public domain was limited; a public hearing would reveal much more confidential detail and was therefore not justified; (ii) on the section 24 application the court applied the Porter v Magill "real possibility" test, considered the relevance of the IBA Guidelines as an aid, and assessed the facts as at the hearing date. The judge found the challenged decision related solely to whether KSA satisfied the Section A definitions of "Director" and "Control"; the admitted 2017 advice had been limited to Section F and (on the evidence of the chair and the Premier League's solicitor) did not address the Section A definitions; the prior appointments were either outside the relevant three-year window or not of a kind or frequency to suggest dependence on the Premier League or its solicitors; the non-disclosures were inadvertent and the private correspondence was largely concerned with obtaining clients' consents and therefore insufficient to show a real possibility of bias. The cumulative assessment did not establish a real risk of apparent bias.

Accordingly the Section 24 Application was dismissed and the hearing was directed to remain private; fuller reasons were provided about the operation of CPR r.62.10 and the balance between arbitration confidentiality and open justice.

This was a first instance decision. The Section 24 Application under the Arbitration Act 1996 was dismissed because, applying the Porter v Magill test as elaborated in the authority, the fair-minded and informed observer would not conclude there was a real possibility that the arbitrator was biased. The application under CPR r.62.10(1) for a public hearing was also rejected: the default position that arbitration claims are heard in private applied and the public interest did not outweigh the parties' expectation of confidentiality in the particular factual matrix of this dispute.