AC-2024-LON-003094 - [2025] EWHC 2161 (Admin)

GROUND FOUR (BIAS / APPEARANCE OF BIAS)

The final ground of claim alleges that there was an appearance of bias and/or “predetermination”.

The first basis for this relates to Mr Gibbons’ relationship with the panel members as demonstrated by the email referenced at §34 above. I have already said that Mr Gibbons should not have played the role he did with the MPC given the terms of the JCQ policy but this was cured by the appeal.

The Defendant also points to authority in other regulatory cases to the effect that the presence of an investigator during deliberations does not give rise to an appearance of bias provided they do not influence the deliberations or decision: see R (DM Digital Television Ltd v Office of Communications [2014] EWHC 961 at §45-47. This extends to the investigator preparing a draft decision providing it is the authorised panel that makes the decision and it is not merely rubber stamping the draft: see DM Digital at §44.

There is no evidence that Mr Gibbons played an improper role in relation to the appeal panel. As this claim must relate to the decision of the appeal panel, the complaint about the MPC does not take the Claimant anywhere.

The second element of the appearance of bias ground relates to the appeal panel’s refusal to require Pearson to give a “concise formulation” as to how it put its case. I do not consider that it is sustainable to argue that this is evidence of an appearance of bias. For the reasons set out above, the Defendant was sufficiently clear in how it put its case.

Finally, the Claimant submits that the chair indicating that there was sufficient evidence to proceed showed that the case had been pre-determined. For the reasons set out above I do not consider that to be a fair characterisation of the chair’s position. A tribunal is entitled to express a preliminary view upon a case. This will only be objectionable if that view indicates that the tribunal is approaching the case with a closed mind.

Even if the chair was indicating a preliminary view upon the merits of the case (which I doubt) it was clear from what he said that he was most certainly not approaching the case with a closed mind. This ground does not succeed.