Raydon Underwriting Management Company Ltd v Stockholm Re (Bermuda) Ltd ((in Liquidation)) 1998 Civil Jur. No. 231

• Jurisdiction: Bermuda
• Judgment Date: 14 December 1998
• Docket Number: Civil Jurisdiction 1998: No. 231
• Date: 14 December 1998
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Geoffrey R Bell

Civil Jurisdiction 1998: No. 231

BETWEEN:-

Raydon Underwriting Management Company Limited

Plaintiff

-and-

Stockholm Re (Bermuda) Ltd. (In Liquidation)

Defendant

Andrew Martin for the Plaintiff

Narinder Hargun for the Defendant

R v GoughELR [1993] AC 646

Bermuda Telephone Co Ltd v Minister of Communications 1990 Civil Appeal No. 20

Metropolitan Properties (FGC) Ltd v LannonELR [1969] 1 QB 577

Hamilton Properties Ltd v Minister of the Environment and Bermuda Financial Centre Ltd 1994 Civil Jur. No. 264

Ross v Woolridge 1997 Criminal Appeal No. 18

Bremer v Ets. SoulesUNK [1985] 1 Lloyds Rep 160

Removal of arbitrator — Impartiality — Apparent bias

JUDGMENT

In these proceedings, the Plaintiff seeks the removal of Mr Bryan Kellett as arbitrator in an arbitration commenced by the Defendant by notice of arbitration dated 29 April 1998. The grounds given for Mr Kellett's removal are that the Plaintiff reasonably perceives that there is a real danger that Mr Kellett will not be impartial or independent by reason of his personal and business relationship with the managers employed by the liquidator of the Defendant, which relationship, it is said, is of such a nature as to be or appear to be likely to affect Mr Kellett's judgment.

In support of the application, the Plaintiff filed an affidavit by Paul Michael Murray, the president of the Plaintiff company, sworn on 29 July 1998. In his affidavit, Mr Murray averred that:

• (i) when the Defendant went into run-off and ceased underwriting, it had appointed Powerscourt Group Limited and Powerscourt Management Limited to have the day to day conduct and control of its affairs:

• (ii) following their appointment on 14 September 1995, the Defendant's joint liquidators had continued to enjoy the same managers who, it is said, have effective day to day conduct of the liquidation under the supervision of the liquidators:

• (iii) the employees of the two Powerscourt companies are the personnel the Plaintiff has dealt with on the details of the matters which are now the subject of the arbitration;

• (iv) John Williams, who is described as a senior officer and principal of the Powerscourt group of companies has both a strong personal friendship and close business connections with Mr Kellett;

• (v) the Plaintiff consequently has a very deep concern that Mr Kellett may not be an impartial or independent arbitrator, in that there is a real danger that his business and personal friendship with Mr Williams might affect his view of the merits of the arbitration.

Because of those concerns on the part of the Plaintiff, their attorneys, Mello, Hollis, Jones & Martin, wrote to the Defendant's attorneys, Conyers, Dill & Pearman, objecting to Mr Kellett's appointment by the Defendant and saying that they required the Defendant to nominate another arbitrator in Mr Kellett's place. Conyers, Dill & Pearman responded that they had considered matters and took the view that Mr Kellett was not disqualified from acting as an arbitrator in the matter. Accordingly, they asked Mello Hollis to reconsider their position. Within a matter of weeks, the present proceedings had been issued.

Directions were given lor the filing of subsequent affidavits, which led to the filing of three further affidavits which I will deal with in turn. Firstly, Mark Smith, one of the joint liquidators, swore an affidavit on 18 August 1998. In regard to Mr Kellett, this affidavit indicated that neither he nor the Defendant had any past or present business dealings with Mr Kellett, and that although he had met...