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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 >> Locabail (UK) Ltd v Bayfield Properties Ltd & Anor  EWCA Civ 3004 (17 November 1999)
Cite as:  EWCA Civ 3004,  HRLR 290,  QB 451,  1 All ER 65,  2 WLR 870,  UKHRR 300,  IRLR 96,  1 QB 451, 7 BHRC 583
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COURT OF APPEAL (CIVIL DIVISION)
Strand, London, WC2A 2LL
Wednesday, 17 November 2000
B e f o r e :
MASTER OF THE ROLLS
LOCABAIL (UK) LTD
- v -
|BAYFIELD PROPERTIES LTD
BARBARA HAGAN EMMANUEL
LOCABAIL (UK) LTD
LOCABAIL INTERNATIONAL FINANCE LTD
- v -
|WALDORF INVESTMENT CORPORATION
ARES DIMITROS EMMANUEL
BARBARA HAGAN EMMANUEL
- v -
MRS D WILLIAMS
- v -
|HM INSPECTOR OF TAXES
- v -
|BRISTOL BETTING AND GAMING LICENSING
COMMITTEE, EX PARTE
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040 Fax No 0171 831 8838
Official Shorthand Writers to the Court)
Ms Hazel Williamson QC (instructed by Messrs Stephenson Harwood, London EC4M 8SH, for the Second Defendant)
2. Mr Anthony Mann QC and Mr James Barker (instructed by Messrs More Fisher Brown, London E1 6DA, for the Plaintiffs)
Ms Hazel Williamson QC (instructed by Messrs Stephenson Harwood, London EC4M 8SH, for the Third Defendant)
3. Mr Andrew Edis QC and Mr Ivan Woolfenden (instructed by Messrs Bartlett & Son, Liverpool L2 9QN for the Claimant)
Mr Robert Jay QC (instructed by Messrs Morgan Cole, Cardiff CF10 3DP for the Defendant
4. Mrs Williams appeared in Person
Miss Tess Gill (instructed by the Solicitor for the Inland Revenue, London WC2 2SG)
5. Miss Judith Jackson QC (instructed by Messrs Dolmans, Cardiff CF10 3DS for the Applicant)
Mr William Norris QC and Miss Lucy Moorman (instructed by Messrs Richards Butler, London EC3A 7EE for the interested party)
Mr David Lloyd Jones QC (instructed by the Treasury Solicitor, London, as Amicus Curiae)
Crown Copyright ©
Wednesday, 17 November 1999
LORD CHIEF JUSTICE, MASTER OF THE ROLLS, VICE-CHANCELLOR:
"No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence."
"There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter ..."
"It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as an automatic disqualification."
"If there is a separate rule for automatic disqualification for financial interest, unrelated to a reasonable apprehension of bias, in my view the irrebuttable presumption of bias only arises (subject to questions of waiver or necessity) where the judicial officer has a direct pecuniary interest in the outcome of the proceeding."
"... I agree with Charles JA that authority which binds this Court does not compel us to conclude that it is the mere shareholding by a judicial officer ("judge") in a party which, alone, constitutes the "disqualifying pecuniary interest", but rather it is the potential interest, created by that shareholding, in the subject matter or outcome of the litigation which is the disqualifying factor."
"My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties."
At page 284, Lord Browne-Wilkinson added:
"It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25 November 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct. The facts of this present case are exceptional. The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.'s objects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest."
" … there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation."
"since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category."
"In my opinion, if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose."
The second passage is at page 670:
"In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those 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 ..."
"there would be no real danger of bias, as no one could suppose that the Judge could be unconsciously affected by that of which he knew nothing (".
"It follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or pre-dispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."
"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
"Why is it to be assumed that the confidence of fair-minded people in the administration of justice would be shaken by the existence of a direct pecuniary interest of no tangible value, but not by the waste of resources and the delays brought about by the setting aside of a judgment on the ground that the judge is disqualified for having such an interest?"
"As a general rule, it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application ..."
Locabail (UK) Ltd v Bayfield Properties Ltd and another.
Locabail (UK) Ltd and another v Waldorf Investment Corporation and others
"It is not suggested that I knew of these matters prior to the commencement of the trial. On Day 7 of the trial in the Hawks Hill action [Tuesday 27 October 1998] Mrs Emmanuel produced further discovery of the file in the possession of the solicitors who had acted for her in her divorce proceedings against Mr Emmanuel. Since her advisers in the Hawks Hill action had not previously seen the file, and since it inevitably contained privileged material, I did not sit for a substantial part of that day so that the matrimonial file could be examined by Mrs Emmanuel's advisers and privileged material removed. The advisers to [Locabail] and I were provided with the remainder of the file towards the end of that day.
The first document in the file was a fax sent in June 1996 from Mr Peter Taroulareas, the first husband of Mrs Emmanuel, to her solicitors, attaching a press cutting from August 1995 about a bankruptcy order obtained against Mr Emmanuel by Sudoexport".
The press cutting to which the deputy judge referred said, under the headline "Greek shipowner in bankruptcy puzzle", that:
"Herbert Smith - the top British solicitors working for Russian trading group Sudoexport - confirmed ... that it had won a bankruptcy order against Emmanuel".
"Judge Collins: Mr Mann and Miss Williamson, I had a quick flick through Bundle T last night and I discovered on the second page for the first time that the firm of which I am a partner seems to have had something to do with attempting to get a bankruptcy order against Mr Emmanuel. It is the first time I have heard of it, and I had nothing whatever to do with it."
Miss Williamson's second point was that the conflict of interest between Mrs Emmanuel and Herbert Smith's clients would have disqualified Herbert Smith from acting as Mrs Emmanuel's solicitor. She relied on paragraph 15.01 of the Guide to the Professional Conduct of Solicitors (7th Edition 1996) published by the Law Society: Paragraph 15.01 provides:
"A solicitor or firm of solicitors should not accept instructions to act for two or more clients where there is a conflict or a significant risk of a conflict between the interests of those clients".
The bias issues
"It is for that reason that I, and no doubt others who sit in a part time capacity, take steps to discover whether that is so. I should add that in the Hawks Hill action Bayfield Properties Ltd (by then controlled by the mortgagees of its shares) consented to the possession order and took no further part in the proceedings; and that in the Hans House action Waldorf Investment Corporation and Mr Emmanuel were not parties to the appeal: they did not appear in the action, and consented in writing to the possession order".
"No doubt there may be cases in the future where, notwithstanding conflict searches, the fact that a large firm is acting for or against a party, or an entity connected with a party, will not be known to a deputy judge, and might not emerge until after judgment has been given. The question might then arise as to whether that would in itself require the judgment of a judge who did not know of the connection to be set aside".
Error! Reference source not found.Timmins v Gormley
"It is inevitable that a judge who sits regularly to hear claims for damages for personal injury will form views about the reliability and impartiality of some medical experts who are frequently witnesses in his or her court. In some cases and notwithstanding the professional detachment of an experienced judge, it will be all but impossible to put such preconceived views entirely to one side in weighing the evidence of a particular medical expert. That does not, however mean that the judge is disqualified from hearing the particular action or any other action involving that medical expert as a witness. The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses who are regularly called to give evidence on behalf of particular classes of plaintiffs (eg members of a particular trade union), are likely to be less sceptical of a plaintiff's claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (eg those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injury cases would be all but impossible.
On the other hand, there is an ill defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice". (pp.570/571)
Williams v Inspector of Taxes and Others
R v Bristol Betting & Gaming Licensing Committee ex parte O'Callaghan
"There is, however, normally no objection to a Judge holding shares in commercial companies, or taking part in the management of a family estate or farming his own land. Equally, there are some forms of non-commercial directorships which a Judge may hold without objection."
Order: (Not part of approved judgment)
PTA 1999/6041/A3 and PTA 1999/6042 PTA 1999/6041/A3 and PTA 1999/6042PTA 1999/6041/A3 and PTA 1999/6042PTA 1999/6041/A3 and PTA 1999/6042
Leave to appeal refused with costs.
PTA 1999/6578/B2PTA 1999/6578/B2PTA 1999/6578/B2PTA 1999/6578/B2
Leave to appeal granted; appeal allowed; retrial ordered; costs of original trial to be in the discretion of the judge who conducts the retrial; no order as to costs in the appeal.
Leave to appeal refused with costs.
Leave to appeal refused with costs; legal aid taxation.