CL-2024-000510 - [2025] EWHC 1523 (Comm)

As set out above, it was on 18 August 2023, in its email to Mr. B, that Mr. Zaiwalla asked Mr. H, for the first time through Mr. B, to disclose all of his previous connections, if any, with Reed Smith or Mr. Weller personally, because, it was said, “this dispute involves a large professional negligence claim against solicitors Reed Smith”. This was not strictly accurate, in that the arbitration dispute did not involve that claim at all (Reed Smith had refused the invitation to become a party to the arbitration, as the Claimants knew). But this alleged fact was used to persuade Mr. H to make disclosure about these connections.

On 19 August 2023 Mr. Zaiwalla then sent a follow up email to Mr. H as follows:

“Dear [Mr. H],

You will see from our e-mail to [Mr. B] yesterday we have taken the liberty of requesting you to disclose all your previous and recent connections with the firm, Reed Smith, and whether you have had any oral conversations or personal contact with Mr. Weller relating to this matter.

We make this request particularly in light of Mr. Weller's aggressive correspondence which we have been receiving for some time now, the cause of which possibly reflects that Reed Smith has been informed by our client that it is pursuing a negligence claim pursuant to the advice we have received from counsel….

In the above circumstances we sincerely trust that you will understand our request and, in keeping with your professional duty of candour, you will revert to us.”

The Claimants submit that “this request could hardly have been clearer” and that this was a “crystal-clear question”. I do not agree. Whilst the email referred to Reed Smith, it only referred in general terms to “connections” and “conversations” and “personal contact”; and, moreover, the focus of the email was clearly upon Mr. Weller: “whether you have had any oral conversations or personal contact with Mr. Weller relating to this matter” and “we make this request particularly in light of Mr. Weller’s aggressive correspondence… the cause of which possibly reflects that Reed Smith has been informed by our client that it is pursuing a negligence claim [against it]”. Mr. H was asked to respond, “in keeping with [his] professional duty of candour.”

In those circumstances, it is unsurprising that Mr. H responded in the terms that he did just one day later:

“For the whole of my career at the English bar, since 1987, I have had professional involvement with both Zaiwalla & Co and Reed Smith (formerly Richards Butler), as barrister, arbitrator and judge. This has included professional involvement with both Mr. Zaiwalla and Mr. Weller. I am not currently retained by either firm, nor am I sitting as arbitrator or judge in any dispute in which either firm is a party.

As regards this arbitral reference under the LMAA Terms 2021, I can confirm that I have had no oral conversations or personal contact with Mr. Weller.”

The Claimants submit that “[s]elf-evidently, the above statement did not answer the question posed”; and there was certainly no compliance with Mr. H’s “professional duty of candour” that the Claimants had invoked. Indeed, they argue, the Court might consider Mr. H’s response to be dismissive of the Claimants’ concerns and deliberately non-responsive. Self-evidently, they say, the Claimants were not worried about, nor were they interested in the extent of Mr. H’s relationship with their own solicitors, Zaiwalla. And, again self-evidently they say, Zaiwalla did not need to ask Mr. H about the extent of their relationship with him.

I consider this submission to be unjustified. It is clear that Mr. H reasonably understood the enquiry to be a general one in relation to his conversations and personal contact with Mr. Weller, as well as generally about his professional involvement with Reed Smith over the years. His reference to “professional involvement” with Zaiwalla and Reed Smith is consistent with that understanding. To suggest that this response was “deliberately non-responsive” is unfair to Mr. H. Moreover, Mr. H’s reference to not sitting as arbitrator or judge in any dispute in which Reed Smith “is a party” was clearly a response to Mr. Zaiwalla’s reference in his email to the High Court claim which he said was being pursued against Reed Smith as a party. Contrary to the Claimants’ submission, this response is nowhere near “sufficient to persuade the observer that there was a real possibility that [Mr. H] was biased”.

Nor do I accept the criticism made of Mr. H that he was deliberately seeking to draw a “false equivalence” between instructions received by him from Zaiwalla (the firm) and instructions received by him from Reed Smith. As Mr. Marcus Mander (Counsel for K together with Mr. James Bailey) submitted, if as an arbitrator you are being asked by one party about your connections with one party’s solicitors, you might very well in fairness state your connections with the other party’s solicitors, in order to be even-handed. There is nothing sinister in that.

Indeed, if Mr. H’s response did indeed “self-evidently” not answer the question posed, it is impossible to understand how Mr. Zaiwalla could have responded to it in the following terms that same day, 20 August 2023:

“Your email below confirms the high standard which you hold. This is not at all surprising for me as my firm and I indeed have had a longstanding good relationship with [your chambers], the first occasion being around 48 years ago with John Hobhouse when I was training at Stacken & Co. As it happens, I mention in my book 'Honour Bound' published by Harper Collins, the names of John Hobhouse, Adrian Hamilton, and Michael Dean from your chambers in a complimentary manner. I can now confirm the withdrawal of my request for a third arbitrator at this stage. My firm will leave the decision to [Mr. B] and your good self”.

The Claimants make no mention in their skeleton argument of this important email in response. Had the Claimants wanted chapter and verse about Mr. H’s past appointments by Reed Smith as arbitrator they could easily have asked for it; but they did not. The Claimants clearly considered that Mr. H had answered satisfactorily the broadly framed questions which had been posed, and they were uninterested in Mr. H’s previous appointments by Reed Smith, no doubt because they were to be expected in this (LMAA) market. This is important context which the fair minded observer would consider before passing judgment. I return to this below.

Over the course of the next 6 months the correspondence from Zaiwalla to the Tribunal became much more critical, and indeed hostile, in the light of the procedural rulings by the Tribunal concerning amendments to the Claimants’ pleaded case, applications for extensions of time and the like, as described above. Zaiwalla went so far as to advance allegations of not just apparent bias but actual bias on the part of the Tribunal in their attempts to have the members of the Tribunal stand down.

In particular, on 11 January 2024 Mr. Zaiwalla wrote to the Tribunal to complain of the fact that the Tribunal had “blocked” the Claimants from including in their defence references to Reed Smith’s actions. Mr. Zaiwalla again made the unfounded allegation that the Tribunal was intent on protecting Reed Smith’s reputation. He said that Zaiwalla would be obliged to advise the Claimants as to their right to challenge any final decision of the Tribunal on the basis of serious irregularity in the conduct of the reference arising out of the Tribunal’s failure to comply with its duties under section 33(1) of the Act in refusing amendments to the Claimants’ pleading. As I have shown, there was no merit at all in this suggestion. Finally, he also suggested that any member of the Tribunal with a professional relationship with Reed Smith should stand down.

Mr. B responded to this email on 16 January 2024. He pointed out that some of the Claimants’ desired amendments to its pleading were allowed and some were not, which hardly exhibits bias in favour of K. He also pointed out that if there were any substance in the complaints the Claimants’ remedy would lie in section 24 of the Act (Footnote: ¹⁰) and that application should be made by them without delay, rather than waiting until an award was published and only then making a challenge under section 68.

On 19 January 2024 Mr. Zaiwalla responded. He stated that “we are in the process of beginning consultation with both the SRA and the Law Society” about Reed Smith’s position. (Footnote: ¹¹) He further stated that the Claimants were considering the advisability of seeking Leading Counsel’s advice on a section 24 application and “we trust that the tribunal will grant the [Claimants] time to consider whether they wish to pursue a remedy under section 24 of the Act and will not require them to take steps in the arbitration that prejudice that right in the interim”. Again, the Claimants sought in this way to delay the progress of the arbitration.

On 29 January 2024 Mr. Zaiwalla emailed the Tribunal again and asked it to “suspend the need for further directions while we seek our client’s instructions and advice of counsel” on an application under section 24. The Tribunal understandably rejected this prospect of an indefinite delay by Mr. S’s email dated 30 January 2024, pointing out that the Claimants had failed to engage with K’s proposed procedural directions for the arbitration. Mr. S reasonably observed that the Tribunal saw no reason why the Claimants’ engagement with the proposed directions should not be expressed to be without prejudice to any section 24 application.

Mr. Zaiwalla responded by email to the Tribunal on 1 February 2024, rejecting that suggestion. Instead, he asserted that the members of the Tribunal were in repudiatory breach of their terms of appointment by reason of their “bullying” correspondence, with the consequence that “the [Claimants] no longer consider the Tribunal to be properly constituted or vested with the requisite jurisdiction to make an effective award in this matter.” I consider this to be yet another wholly meritless accusation, designed to derail the arbitration process. Mr. Zaiwalla once again referred in terrorem to the prospect of the Claimants’ bringing a section 24 application against the members of the Tribunal.

By email dated 12 February 2024 Mr. Zaiwalla finally informed the Tribunal that “The [Claimants] are now in the process of preparing a section 24 application.” Despite this unequivocal statement, in fact no such application was ever made. Accordingly, if advice was taken concerning a section 24 challenge, it appears to have been negative: that there was no basis for the removal of any of the arbitrators. In paragraph 22 of Mr. Crestohl’s 4^th witness statement the Claimants suggested for the first time that the reason that they did not pursue a section 24 application was because the Tribunal members’ contract had already been terminated for repudiatory breach. But that explanation seems unlikely as the Claimants’ statement that they were preparing a section 24 application came 11 days after the alleged repudiatory breach and, moreover, the allegation of repudiatory breach was based upon the Tribunal’s purported favouring of Reed Smith in its procedural rulings and not upon Mr. H’s previous arbitral appointments by Reed Smith.

Having failed to stay or delay the arbitration, and having failed to persuade the members of the Tribunal to stand down, the Claimants then went back on the attack against Mr. H personally, some 6 months after their first enquiry about his connections with Reed Smith and Mr. Weller. Thus, on 15 February 2024 Mr. Zaiwalla wrote to Mr. H in the following terms, in sharp contrast to the cordial email which he sent back on 20 August 2023:

“Dear [Mr. H],

You will recall that by your email of 20 August 2023, you had mentioned that you had professional involvement with our firm and “both Mr. Zaiwalla and Mr. Weller”. Having searched our records, we cannot find any evidence of any professional involvement with your good self either by our firm or Mr. Zaiwalla. Would you therefore kindly check your records and confirm whether this statement was made in error.

For your ready reference we enclose our exchanges during this period including your email of 20 Aug 2023.”

Mr. H responded by email 4 days later on 19 February 2023. He stated that:

“So far as professional instructions are concerned, my recollection is that I was instructed by your firm in about 1987 to assist my Head of Chambers …. I specifically recall meeting Mr. Zaiwalla personally in that context. I have no personal records that date back to 1987 and my clerks have checked the chambers’ financial records. My clerks are obliged under the UK Data Protection Regulation to anonymise information from financial records when it is no longer needed. There are some financial records dating back to 1985, but these early records are incomplete and do not include cases which were recorded on what were referred to as “case cards”. Such financial records as do exist show no cases either live, completed, deleted or archived but my clerks have informed me that many instructions were only recorded manually on hard copy case cards. I have also had professional involvement with Mr. Zaiwalla as counsel instructed for an opposing party.

As regards other professional involvement, I have attended LMAA dinners and conferences at which Mr. Zaiwalla was present. Indeed, my contact with Mr. Zaiwalla over the years has only been in a professional context.”

On the same date, Zaiwalla sent a further letter by email to the members of the Tribunal, again alleging that they were in repudiatory breach of contract and that the Claimant had accepted that breach with the consequence that the arbitration agreement was at an end. The members of the Tribunal were invited to agree that this was so. Unsurprisingly they did not. Mr. S responded by email dated 20 February 2024 in which he explained that the Tribunal saw no basis in law or in fact for such an allegation and that it would continue to discharge its responsibilities to hear and determine the reference. He noted that no section 24 application had been brought, despite Mr. Zaiwalla having stated that it was being prepared.

With that avenue closed down, Mr. Zaiwalla returned to the topic of Mr. H’s previous instructions one week later in an email to Mr. H dated 27 February 2024. This email, in which Mr. Zaiwalla opined that “these are matters which do not frequently arise in the ordinary course of an LMAA arbitration”, reveals that he had convinced himself of “[Mr. H’s] possible [lack of] independence” because “during the holiday period of August 2023 we felt that interlocutory decisions by you were being rushed along at an unusual and unnecessary pace” despite the Claimants’ objections and “[they] had concerns that you were cooperating unconsciously with Reed Smith who [they] suspected of acting to cover up its mistake of prematurely and wrongly notifying Barclays Bank to freeze the escrow money which in turn had the consequence of frustrating the sale of the vessel [K] to our client.” The supposed connection between the alleged “rushing along” of interlocutory decisions in August 2023 and Mr. H’s alleged lack of independence is transparently false, as the analysis of those procedural decisions above demonstrates. There is no evidence to support any rushing along or any “unconscious cooperation” on the part of Mr. H.

Mr. Zaiwalla further questioned whether Mr. H had in fact ever been instructed by his firm and then concluded his letter by stating as follows:

“A more relevant consideration will b[e] any professional involvement that you may in the recent past have had with Reed Smith LLP. As your clerks have recently been assisting you with this enquiry, may I at the same time request that they verify the extent of your previous professional involvement with Reed Smith (and its predecessor firm Richards Butler), and/or Mr. Weller, whether as counsel or arbitrator appointed by one of its clients”.

The Claimants suggest that this was a straightforward request that Mr. H disclose his connections to Reed Smith LLP (and its predecessor Richards Butler). But one can readily understand how, in the context of an LMAA arbitration and in view of the formulation of “Reed Smith and/or Mr. Weller”, Mr. H might have taken this enquiry to be focussing particularly on cases in which he had been instructed by Mr. Weller and other members of his department within Reed Smith. That is particularly so in light of the earlier correspondence from Zaiwalla in which Mr. Weller is the focus of their enquiry.

That indeed appears to be how Mr. H understood this enquiry when he responded on 2 March 2024. Having fairly pointed out that accusing him of actual or apparent bias overlooked the fact that “[t]he Tribunal has not ever made a decision in this reference other than unanimously – between Mr. [B] and me, before Mr. [S] was appointed, and between all three arbitrators, since Mr. [S]’s appointment”, he answered the enquiry of Mr. Zaiwalla as follows:

“In answer to your final question, my clerks have informed me that, in my capacity as barrister, I have been instructed by Mr. Weller or members of his department once, in 2014 (total fees earned - £3,900); and between 2008 and the present, I have been appointed arbitrator on 8 occasions (excluding the current reference). Four did not progress beyond appointment, in two there was minimal additional involvement (total fees £1,250 and £872.50) and two progressed to awards, where my total fees were £14,900 (appointment in 2008) and £26,175.00 (appointment in 2017).”

It appears that Mr. H was informing Mr. Zaiwalla about his instructions by Mr. Weller and his department at Reed Smith, which makes sense in the context of an LMAA arbitration. In any event, once again had the Claimants wanted broader information than this, concerning any instructions by Reed Smith as a firm, then no doubt they would immediately have asked for it in response. But they did not. Nor, unsurprisingly, did they suggest that (i) Mr. H should have disclosed the 8 arbitral appointments over a 16-year period at any earlier stage and (ii) his failure to do so was in any way wrongful. This again lends support to a finding that there was no voluntary duty upon Mr. H to disclose any previous instructions by Reed Smith in the context of an LMAA arbitration, and this is again important context which the fair minded observer would consider before passing judgment. I return to this below.

Instead, the Claimants let matters lie after receipt of Mr. H’s email until the publication of the award some 6 months later (see further below). Furthermore, if as the Claimants now argue, “the meaning of Mr. Weller’s “department” is entirely obscure”, why did they not ask Mr. H what he meant by that? But they did not. I do not accept that it is obscure in any event. Mr. Weller signed his letters at the time with a footer which read “Transportation Industry Group/Shipping.” He was a partner in Reed Smith’s Shipping Department of the Transportation Industry Group.

It follows that in respect of this enquiry, as in respect of the first enquiry, the Claimants had drawn a blank in their attempt to have Mr. H removed as an arbitrator.

On 6 March 2024, Mr. B sent an email to Mr. Zaiwalla in which he also made the obvious point, in respect of Mr. Zaiwalla’s allegation that Mr. H had favoured Mr. Weller/Reed Smith in the interlocutory decisions taken by the Tribunal, that

“Your letter ignores the fact that at all times I was a party to the decisions to which you object. None of those decisions could have been made without my participation. In every respect the tribunal’s decisions were made by [Mr. H] and myself jointly and I fully participated in and agreed with all of them. I am senior to [Mr. H] in call and am in no way under his influence, yet I am not accused of excessive closeness to Mr. Weller or Reed Smith nor could I be. If the allegations you make are justified, then they are just as much criticisms of myself but there could be no corruption of the sort you claim.

You may wish to reconsider your position.”

Mr. Zaiwalla’s response to this email simply fails to grapple with this point. Instead, he simply asserted as follows:

“The centrepiece of the [Claimant's] concern is and has been the unique fact that Mr. Weller, the Reed Smith partner, is facing a personal allegation of having made an erroneous decision amounting to negligence which prevented the contract for the sale of the vessel from being performed and caused substantial consequential losses to our client, which are at present being claimed in the proceedings in the High Court commenced by our client against Reed Smith. It is apparent from Mr. Weller’s conduct that he and his firm, Reed Smith, were seeking friendly protection from the Tribunal of which [Mr. H] is a member, and it seems to both [the Claimants] and our firm that they have been deriving protection through the Tribunal’s unusually generally one-sided approach and conduct, seeking to protect Mr. Weller’s and Reed Smith's reputation”.

The suggestion that the Tribunal, in making its interlocutory rulings, was “seeking to protect Mr. Weller’s and Reed Smith's reputation” was and is wholly unfounded, there being no evidence to support such a serious allegation, as I have explained above.

On 8 March 2024 Mr. S sent an email to Mr. Zaiwalla in which he stated that the suggestion that he or the Tribunal had danced to the tune of K was “nothing short of preposterous.” He explained that:

“We have not, in the light of my very considerable experience as an arbitrator in LMAA, ICC, LCIA, UNCITRAL and other arbitrations, acted with undue haste, nor have we consistently made one-sided decisions as you have suggested. To the contrary we have considered each application before us on its merits, independently and without favouring either side. The fact that we have made decisions with which one or other side has disagreed is of course no indication of bias, conscious or unconscious and as you are aware the [Defendant] as well as the [Claimants] have been the recipient of adverse procedural decisions. If our approach has been more “formal” than that common in at least some LMAA arbitrations, it is a function of the nature and seriousness of the issues raised, as we made clear in early correspondence, and as has proved to be more than amply justified as the case has developed.”

Mr. S also pointed out that:

“If there was any substance to your firm's allegations of bias, then, as has been pointed out, your clients’ remedy lay in an application under section 24 of the Arbitration Act 1996. Yet despite your firm’s having informed us, on the 30 January 2024, that instructions had been received to seek the advice of leading counsel on making a section 24 application, no such application has been made. On the contrary, your clients have apparently embarked on a course of non-participation for which we can see no factual or legal justification.”

Accordingly, it must have been clear to the Claimants and Zaiwalla by this stage that the Tribunal was not going to accede to the repeated, unfounded suggestions for it to stand down. But the Claimants failed to issue section 24 proceedings. Instead, they played no further part in the arbitration and on 12 August 2024 the Tribunal published its Partial Final Award in favour of K.

The Claimants’ tactical approach to the arbitration had accordingly seriously backfired. The members of the Tribunal had refused to stand down and the Claimants did not have the courage of their (asserted) conviction: no section 24 application had been made by them.

Some five months later, Mr. Zaiwalla returned to the subject of bias in his email to the members of the Tribunal dated 14 August 2024. As Mr. Mander submitted, this may well have been prompted by the publication of the judgment in Aiteo v Shell [2024] EWHC 1993 (Comm), a judgment of Jacobs J which was handed down on 1 August 2024 (and which I consider below). Mr. Zaiwalla stated that the Claimants were “at present considering applying to the court to challenge the award under section 68” and that:

“For this purpose, we would request each of you individually to kindly disclose any past and present connection, personal or otherwise (including number of times instructed as counsel or appointed as arbitrator) with Reed Smith, Mr. Weller or any other partners of Reed Smith, giving full details. Need we say, we expect you to each frankly state your connection, including, any personal or social connection with Mr. Weller, or any other Partners of Reed Smith.” (emphasis added)

In other words, the Claimants were looking for some material to support a section 68 challenge; and this time they had decided to focus not just upon Mr. H but also upon Mr. B and Mr. S. Further still, they widened their request to any past or present connection, personal or otherwise, with any partners of Reed Smith other than Mr. Weller.

Mr. B was not taking the bait: he stated that the Tribunal was functus officio and the request was inappropriate. Accordingly, he did not intend to respond. Similarly, Mr. S stated in his email in reply dated 14 August (more accurately) that the Tribunal was “functus officioin respect of all matters decided therein” but that if he had any material disclosure to make, he would have done so at the time of his appointment. For completeness, he had no record of being appointed as arbitrator by Reed Smith since 2013 and he had no personal or professional relationship with Mr. Weller.

Mr. H responded by email dated 19 August 2024. He stated in particular:

“So far as I can recall I have had no personal or social contact with any partner of Reed Smith (including Mr. Weller) in the last five years. (I have taken the period of five years to be conservative, three being the more normal period of reference.) During this period, I have not been retained as counsel by any partner of Reed Smith. According to my clerks, who retain these records, I have received 88 appointments as arbitrator during this period, of which 14 were appointments by Reed Smith (about 16%). Most of these appointments have been in LMAA arbitrations – a field of arbitration which has its own particular characteristics, circumstances, customs and practices – although I have also had 2 LCIA and 1 ICC appointment. The ICC arbitration and most of the LMAA arbitrations never proceeded beyond appointment. I suspect that, like many of my arbitral appointments, the appointment was made to prevent claims becoming time barred. Two LMAA arbitrations are still active. The proportion of my income as an arbitrator during this period which relates to appointments by Reed Smith is about 8% (of which the [K] arbitration accounts for about 37%).” (emphasis added)

Mr. H accordingly made clear to the Claimants that, as with his earlier disclosure on 2 March 2024, the information which he was conveying to them was information which had been provided to him by his clerks, who retained the relevant records.

The Claimants argue that there is a confusing and unexplained mismatch of terminology between Mr. H’s response of 2 March 2024 and his response of 19 August 2024. In the former, Mr. H referred to appointments by “Mr. Weller or members of his department” whereas in the latter he referred to “Reed Smith”, which as Mr. Weller states in his first witness statement at [69], “is of course significantly larger than my department”. But it can be seen that mismatch is likely the product of the questions which were asked of him by Zaiwalla: the request of 14 August 2024 is apparently wider than the request of 2 March 2024. At the very least, since the scope of the information being sought was ambiguous, the fair minded and informed observer would certainly not conclude that there was a real possibility of bias on the part of Mr. H purely as a result of his answering the enquiries as he did.

The Claimants also suggest that there is an inconsistency between Mr. H’s email of 2 March 2024 in which he says that, between 2008 and March 2024 (16 years) he had been appointed as arbitrator by Mr. Weller or members of his department on 8 occasions (excluding the K arbitration) and his last email of 19 August 2024 in which he says that in the past 5 years (presumably up until August 2024) he had received 14 appointments by Reed Smith as a firm (not limited to Mr. Weller or his department), most of which were LMAA arbitrations although 2 were LCIA arbitrations and one ICC arbitration. Mr. Mander argued that there may be no inconsistency in that in his email of 2^nd March 2024 Mr. H may have been referring to LMAA arbitrations only (of which there are 9) as he is referring to Mr. Weller’s department, and whilst in his 19 August email he refers to 14 appointments, the additional 5 may be explained by the fact that 3 are non-LMAA arbitrations and the two active LMAA arbitrations may be new arbitration appointments since March 2024. Mr. Karia KC takes issue with that, maintaining that in his email of 2 March 2024, Mr. H does not say that he is only referring to LMAA arbitrations.

Without an explanation from Mr. H (or rather his clerks) it is impossible to resolve this question. It is possible that there is an inconsistency, and if so, that may simply be that, as Mr. Mander submitted, a more extensive search of the relevant records was undertaken by the clerks in August 2024 in view of the fact that it was clear that the Claimants were intending to bring a section 68 application.

But in any event, I reject any suggestion that Mr. H was guilty of a lack of candour in making this disclosure in his third email. On the contrary, it is clear that he was being fully transparent in respect of his previous instructions by Reed Smith, by asking his clerks to interrogate the records which chambers holds, which information he then passed on to Zaiwalla in his email, making clear that this was what he had been told by his clerks, who held the records.

Indeed, if the Claimants considered that there were any inconsistency between these two emails, they could simply have asked Mr. H to check the position with his clerks, rather than keeping quiet about it, and then launching this section 68 challenge on 7 October 2024 on the basis of this email, alleging a lack of candour based upon their interpretation of it in Mr. H’s absence. That is reinforced by the fact that had a section 24 application been made, as was repeatedly threatened by the Claimants, Mr. H would have been entitled to appear before the court and be heard. Instead, the Claimants have chosen to invite the court to look at ambiguous correspondence passing between them and Mr. H and then to invite the court to adopt a construction of that correspondence which is unfavourable to Mr. H in order to support the very serious finding, damaging to his professional reputation, that he was being deliberately evasive about his relationship with Reed Smith and Mr. Weller. Particularly when these email exchanges are seen in the context of the correspondence as a whole and in the context of the transparently fair way in which all procedural applications were handled by Mr. H, I do not consider that the fair minded and informed observer would conclude that there was a real possibility of bias on the part of Mr. H.