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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Harada Ltd v Turner  EWCA Civ 599 (6 April 2001)
Cite as:  EWCA Civ 599
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE LINDSAY)
Friday 6 April 2001
B e f o r e :
LORD JUSTICE MANTELL
MR JUSTICE MCKINNON
|- v -|
|GEOFFREY PAUL TURNER|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0207 421 4040
Fax: 0207 831 8838
Official Shorthand Writers to the Court)
MR ALEXANDER HICKEY (Instructed by Messrs G P Turner, London, SW8 1NX) appeared on behalf of the Respondent
Crown Copyright ©
"This is the 7th time that these respondents have appeared here in the last 6 months. These respondents are well known to the tribunal.
These respondents turn up with excuses and arguments to avoid the matters going to trial.
There was a flutter in the dovecotes in another case last Wednesday when it became clear that counsel for the respondents did not even know what the true [corporate] set-up was."
"The Chairman made this remark twice. He then went on to recount that the applicant in the earlier case had been litigating at length against a company which did not - and the employers knew did not - exist.
In the circumstances it is not as though the respondents come here with a slate which is exactly clean.
We have not read the other cases. We are not interested in them.
We wonder in view of [the history] if there is any light at the end of the tunnel. The parties might benefit from 10 minutes to discuss."
"Whether, having regard to the 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."
"(4) The question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By 'real' is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility.
(5) Injustice will have occurred as a result of bias if 'the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him'. I take 'unfairly regarded with disfavour' to mean 'was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue'.
(6) A decision-maker may have unfairly regarded with disfavour one party's case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased.
(7) It will be seen, therefore, that by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias."
and in relation to the coroner's decision in that case:
"(9) It is not necessary for the applicants to demonstrate a real possibility that the coroner's decision would have been different but for bias; what must be established is the real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing contentions, and so decide the merits, unfairly."
"What is the court to do where, although inclined to accept a statement about what the Judge under review knew at any material time, it recognises the possibility of doubt and the likelihood of public scepticism. It is invidious for the reviewing Court to question the word of the Judge in such circumstances, less so to say that the objective onlooker might have difficulty in accepting it."
"The problem with the 'real danger' test is particularly acute where a Judge is invited to recuse himself. In such a situation it is invidious to expect a Judge to rule on the danger that he may actually be influenced by partiality. The test of whether the objective onlooker might have a reasonable apprehension of bias is manifestly more satisfactory in such circumstances."
"We would summarise the principles to be derived from this line of cases as follows:
(1) If a Judge is shown to have been influenced by actual bias, his decision must be set aside.
(2) Where actual bias has not been established the personal impartiality of the Judge is to be presumed.
(3) The Court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the Judge might not have been impartial. If they do the decision of the Judge must be set aside.
(4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the Court.
(5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice."
"However, doing the best we can to recapture the context as it was on the day, the Chairman's remarks did no more, it seems to us, than indicate, albeit in ill-considered and perhaps hurtful terms, that if Harada's position was going to emerge as tending to delay (as Mr Turner's counsel feared, as Mr Turner's witness statement suggested might be the case, and as the procedural history of the case showed had previously been the position) then Harada was going to have a very difficult issue on its hands and could expect heavy resistance."
"Here, delay was obviously likely to be a feature in argument."
"There was, in our judgment, no indication of minds irreversibly set against Harada on the question of jurisdiction though there had been an over-firm indication that if delay was going to be sought by Harada it was going to have a difficult task on its hands."
"The comments that we are here talking about were not made in open court or before the parties."
"Save in extraordinary circumstances, it cannot be right for a litigant, unhappy with what he believes to be the indications from the Tribunal as to how the case is progressing, to apply, in the middle of the case, for a re-hearing before another Tribunal. It is undesirable that the Tribunal accused of giving the opinion of bias should be asked itself to adjudicated on that matter. The dissatisfied litigant should ordinarily wait the decision and then, if he thinks it appropriate, he would make his dissatisfaction with the conduct of the case by the Tribunal a ground of appeal."