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Taylor & Anor v Lawrence & Anor  EWCA Civ 90 (4th February, 2002)
| || ||Neutral Citation Number:  EWCA Civ 90|
| || ||Case No: 2001/2419|
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
HIS HONOUR PETER GOLDSTONE
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||4 February 2002|
B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES -LORD WOOLF
MASTER OF THE ROLLS - LORD PHILLIPS
LORD JUSTICE WARD
LORD JUSTICE BROOKE
LORD JUSTICE CHADWICK
| || |
Richard Mark Taylor
Kim Priscilla Taylor
| ||- and -|
| ||Joseph Dwight Lawrence|
Ruth Amanda Lawrence
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR BERNARD EDER, QC AND MR DAVID SCOREY
(instructed by the Bar Pro Bono Unit for the Appellants)
MR TIM COWEN
(instructed by Mathew Arnold & Baldwin for the Respondents)
MR TIMOTHY CORNER AND MISS SARAH-JANE DAVIES
(instructed by Attorney General as advocates to the court)
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Woolf CJ:
This is the judgment of the Court.
- This application raises two important issues. The first relates to the jurisdiction of this court. It is whether the Court of Appeal has power to reopen an appeal after it has given a final judgment and that judgment has been drawn up (“The Jurisdiction Issue”). The second issue is as to the circumstances that are capable of giving rise to the possibility of bias on the part of a judge (“The Bias Issue”). The judge against whom the allegations of bias were made was His Hon. Peter Goldstone, who was sitting as a Deputy Circuit Judge at Watford County Court at the trial of this action in November 1999.
- We are grateful for the assistance given by Counsel in this case. We are particularly grateful to Mr Bernard Eder QC and Mr David Scorey, who have appeared for the appellants, Mr Joseph Dwight Lawrence and Mrs Ruth Amanda Lawrence, as they have done so without charging any fees, and to Mr Timothy Corner and Miss Sarah-Jane Davies, whom the Attorney General, at our request, instructed to appear as advocates to the court. We are also grateful to Clifford Chance, who prepared the eight bundles of documents and authorities for use at the hearing in an exemplary manner and without making any charge.
- For a summary of the appellants’ version of the background facts to this appeal we cannot improve upon that provided by counsel for the appellants in their skeleton argument. The summary is in these terms:
“1. The parties litigated a boundary dispute. A trial took place in 1999. At that trial, the Appellants were not represented but the Respondents had both solicitors and counsel. The trial judge informed the parties that he had been a client of the Respondents’ solicitors (referred to as “MAB”), but that it had been “many years” since he had last instructed them, and no one objected to him continuing to hear the trial. In November 1999, judgment was given against the Appellants. An appeal was made to the Court of Appeal. One ground of appeal was that there was an appearance of bias because of the judge’s relationship with the other parties’ solicitors, MAB. Subsequent to the permission being granted in March 2000, it was disclosed to the Appellants that the judge and his wife had in fact used the services of MAB the very night before judgment was given against the Appellants to amend their wills. Before the appeal, the judge provided further information as to his involvement with MAB.
2. The appeal failed in January 2001. The Appellants have subsequently learnt that the judge did not pay for the services provided by MAB. He therefore received a financial benefit from MAB in whose favour he gave judgment. The fact was never disclosed by the judge, despite his having the opportunity to do so. The earlier appeal was dismissed in ignorance of this fact …”
- The manner in which the appellants learnt that the judge had not paid for the services provided by MAB is disgraceful. An inquiry agent telephoned MAB, pretending to be the judge’s accountant, and elicited the information. This raises the question of whether this court ought to entertain an appeal based on material obtained in this way. There is a similar, but more general question. Why had the appellants not discovered, before the Court of Appeal embarked on the hearing of their case, that the judge had not paid for the services provided by MAB? Had they sought information about this it is likely they would have been told that MAB had made no charge.
- It is a firm rule of practice that the Court of Appeal will not allow fresh evidence to be adduced in support of an appeal if that evidence was reasonably accessible at the time of the original hearing: Ladd v Marshall  1 WLR 1489. Counsel for the respondents argued that this rule should preclude the appellants from seeking at this stage to base an allegation of bias on material that they could and should have deployed at the hearing of the original appeal. We consider that there is force in this submission. Arguably, this application should have been dismissed at the outset for this reason. A court of five judges has, however, been constituted in order to address the important issue of jurisdiction that arises on the facts of this case. In these circumstances we have decided to proceed on the basis that the appellants could not reasonably have become aware of the fact that the judge had not paid for MAB’s services at the time of the original appeal and to overlook the discreditable manner in which that information was subsequently obtained. This will enable us to address the issue of jurisdiction that is raised by this application.
THE JURISDICTION ISSUE
- The rule in Ladd v Marshall is an example of a fundamental principle of our common law – that the outcome of litigation should be final. Where an issue has been determined by a decision of the court, that decision should definitively determine the issue as between those who were party to the litigation. Furthermore, parties who are involved in litigation are expected to put before the court all the issues relevant to that litigation. If they do not, they will not normally be permitted to have a second bite at the cherry – Henderson v Henderson (1843) 3 Hare 100. The reasons for the general approach is vigorously proclaimed by Lord Wilberforce and Lord Simon in The Ampthill Peerage case  AC 547. Both statements deserve the most careful attention. However, for reasons of economy we will cite only Lord Wilberforce, who presided, but we give reference to Lord Simon’s speech at p.575E to 576H. Lord Wilberforce said (at p.569A-E):
“English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.”
- The creation by the Supreme Court of Judicature Act 1873 of the Court of Appeal recognised that justice required some qualification to the principle that the outcome of litigation should be final. The Court of Chancery had already demonstrated that this was so. It had been prepared to entertain a bill to impeach a judicial decree that had been obtained by fraud and, in some circumstances, where facts had come to light which showed that the decree should not have been made – see the observations of Jessel M.R. in Flower v Lloyd (1877) 6 Ch.D. 297 at 299–301.
- The right of appeal to the House of Lords, now subject to the Administration of Justice (Appeals) Act 1934, is further recognition of the need to temper the principle that the outcome of litigation should be final. In ex parte Pinochet (No. 2)  1 AC 119 the House held that it had jurisdiction to rehear an appeal where an appearance of bias was demonstrated on the part of one of the members of the Committee that had determined the appeal. The present application raises the question of whether the Court of Appeal has jurisdiction to reopen an appeal if an appearance of bias can be demonstrated on the part of the court below.
- It is not uncommon for fresh evidence to come to light after a judgment has been perfected which puts that judgment in doubt. In such circumstances the unsuccessful litigant may be able to invoke that evidence in order to challenge the judgment by an appeal. Once the judgment is perfected, however, the court that has delivered the judgment, be it a court of first instance or the Court of Appeal, would not entertain an application to reopen the judgment in order to consider the effect of the fresh evidence. This is not because of any express statutory prohibition. In considering the extent of their jurisdiction the courts have ruled that a perfected judgment exhausts their jurisdiction because this accords with the fundamental principle that the outcome of litigation should be final. This can be demonstrated by reference to the judgment of Russell LJ in In re Barrell Enterprises  1 WLR 19. (See the passages of the judgment at 23H to 24A and 24E to F.)
- The appellant in this case was a contemnor who had appealed to the Court of Appeal against a committal order made by Pennycuick V-C and had her appeal dismissed. By what appears to have been an oversight the order of the Court of Appeal was not perfected. The contemnor then persuaded Brightman J to entertain an application to set aside the committal order on the ground of fresh evidence. That application was dismissed. She then sought to re-open her appeal on the ground of the fresh evidence.
- In the course of his judgment Russell LJ considered whether Brightman J had had jurisdiction to re-open the case on the ground of fresh evidence. He observed at pp.24G-25B:
“We are reluctant to find carried forward into this century procedures which were devised for review or rehearing or new trial at a time when the Court of Appeal did not exist. We can accept without difficulty the notion that if a judgment has been obtained by fraud an action can be brought to set it aside. But when it comes to setting aside a judgment on the grounds that fresh evidence has been obtained it appears to us highly desirable that the Court of Appeal alone should have jurisdiction. Then the rules as to time for appeal, with the discretion to allow an appeal out of time, will apply. So will the code for deciding when fresh evidence should be admitted, now enshrined in the judgment of Denning LJ in Ladd v Marshall  1 WLR 1489. There are, however, in the Supreme Court Practice (1970) and in textbooks statements to the effect that an action will lie to set aside a judgment on the grounds of fresh evidence and it is necessary to consider whether these are well-founded.”
The Supreme Court Practice (1970), p.327, has this sentence:
‘If a judgment or order has been obtained by fraud or where evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment.’”
- Russell LJ went on to consider the authorities that related to this passage in the White Book. He found authorities that indicated that before 1873 litigants, by a bill of review, had succeeded in re-opening a decision on the ground that it had been obtained by fraud or shown to be wrong by fresh evidence. So far as fraud was concerned this jurisdiction had survived the Supreme Court of Judicature Act 1873 in the form of an action to set aside a judgment obtained by fraud. As to the effect of the discovery of fresh evidence, he held at pp. 26H-27B:
“In none of the cases brought to our notice has an action to set aside a judgment on the ground of fresh evidence succeeded. Indeed there is nothing to show that in the last 100 years any such action has even been brought though in Falcke’s case, 57 L.T. 39 in 1887 there was an unsuccessful attempt to bring one. In so far as any of the dicta tend to show that an action will lie they are obiter. The reason which Sir George Jessel M.R. gave in In re St. Nazaire Co, 12 Ch.D. 88 for the view that the jurisdiction to order a rehearing was vested by the Judicature Act in the Court of Appeal and not in the High Court is of equal weight in relation to fresh evidence as to the type of case with which he was dealing. Even if, technically, the High Court was at first clothed with this jurisdiction we are of opinion that this cause of action has long since lapsed because applications for rehearing on the ground of fresh evidence have for generations been made only to the Court of Appeal.”
- In refusing the contemnor's attempt to re-open her appeal, Russell LJ stated at pp.23H-24A:
“When oral judgment has been given, either in a court of first instance or on appeal, the successful party ought save in most exceptional circumstances to be able to assume that the judgment is a valid and effective one. The cases to which we were referred in which judgments in civil courts have been varied after delivery (apart from the correction of slips) were all cases in which some most unusual element was present.” (emphasis added)
Later Russell LJ added (at p24E-F);
“It is clearly not permissible for a party to ask for a further hearing merely because he has thought of a possible ground of appeal that he originally overlooked. The discovery of fresh evidence has never been suggested as a ground for reopening the argument before the Court of Appeal. If fresh evidence comes to light, of such a character as to call for further consideration of the issues, the right way to deal with the situation is by applying for leave to appeal to the House of Lords… ”
- Does it follow that there are no circumstances in which the Court of Appeal can re-open an appeal once judgment has been given and perfected? Mr Corner submitted that this was indeed the case. He started by pointing out that the Court of Appeal owes its creation to statute and it has no inherent jurisdiction. He also helpfully traced the statutory history of s.15 of the Supreme Court Act 1981 (“the 1981 Act”), which goes back to the Supreme Court of Judicature Act 1873. Section 15 describes the general jurisdiction of the Court of Appeal today. The critical part of s.15 is in these terms:
“ (1) The Court of Appeal shall be a superior court of record.
(2) Subject to the provisions of this Act, there shall be exercisable by the Court of Appeal-
(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and
(b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act.”
- The earlier statutory provisions demonstrate that when the Court of Appeal was established, it was not given any jurisdiction in relation to appeals from the county court. The jurisdiction to hear appeals from the county courts was transferred to the High Court by s.16 of the 1873 Act and was expressly conferred upon Divisional Courts of the High Court by s.45 of the 1873 Act. The Court of Appeal only acquired jurisdiction to hear appeals from the county court in 1934, such jurisdiction again being expressly conferred by statute (s.2 of the Administration of Justice (Appeals) Act 1934).
- Accordingly, it is accepted that the Court of Appeal does not have any inherent jurisdiction in respect of appeals from the county court but only that which is given by statute. However, the use of the word “inherent” in this context means no more than that the Court of Appeal’s jurisdiction depends on statute and it has no originating jurisdiction. The position is very much the same in relation to other appeals to the Court of Appeal. Its jurisdiction is to be determined solely by reference to the relevant statutory provisions.
- We here emphasise that there is a distinction between the question whether a court has jurisdiction and how it exercises the jurisdiction which it is undoubtedly given by statute. So, for example, a court does not need to be given express power to decide upon the procedure which it wishes to adopt. Such a power is implicit in it being required to determine appeals. It is also important when considering authorities which, it is suggested, are laying down principles as to the jurisdiction of a court, to ascertain whether they are doing more than setting out statements of the current practice of the court, which can be changed as the requirements of practice change. These powers to determine its own procedure and practice which a court possesses are also referred to as being within the inherent jurisdiction of the court, and when the term “inherent jurisdiction” is used in this sense (as to which see The Inherent Jurisdiction of the Court by Master Sir Jack Jacob, Current Legal Problems (1970) 23 at p.32 et seq.), the Court of Appeal, as with other courts, has an inherent or implicit jurisdiction.
- As the appellants’ case was originally heard in the county court, Mr Corner also referred to s.77 (as amended) of the County Courts Act 1984 (“the 1984 Act”) which sets out the right of appeal from the county court to the Court of Appeal and provides, so far as material, as follows:
“Appeals: general provisions
(1) Subject to the provisions of this section and the following provisions of this Part of this Act and to any order made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999, if any party to any proceedings in a county court is dissatisfied with the determination of the judge or jury, he may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by Civil Procedure Rules.”
- Section 81 of the 1984 Act sets out the powers of the Court of Appeal on an appeal from the county court. It provides, so far as material:
“81. Powers of Court of Appeal on appeal from county court
(1) On the hearing of an appeal, the Court of Appeal may draw any inference of fact and either –
(a) order a new trial on such terms as the court thinks just; or
(b) order judgment to be entered for any party; or
(c) make a final or other order on such terms as the court thinks proper to ensure the determination on the merits of the real question in controversy between the parties.”
- Finally, Mr Corner referred us to s.15(3) of the 1981 Act which confers incidental jurisdiction on the Court of Appeal and provides:
“(3) For all purposes of or incidental to –
(a) the hearing and determination of any appeal to the civil division of the Court of Appeal; and
(b) the amendment, execution and enforcement of any judgment or order made on such an appeal,
the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.”
- Mr Corner then referred us to statements of principle which he submitted authoritatively determine that this court has no jurisdiction to re-open an appeal once it has been finally decided, and that the only course available to persons in the appellants’ position is to seek to appeal to the House of Lords out of time.
- The earliest and perhaps the most important case upon which Mr Corner relied for this submission is the case of Flower v Lloyd  6 Ch.D. 297. Flower v Lloyd was decided early in the life of this court but it did exert a considerable influence on what was said in judgments in later cases. The court was presided over by the then Master of the Rolls, Sir George Jessel. The issue before the court was whether the claimant in that action was entitled by motion to apply for leave for rehearing of an appeal because of the “subsequent discovery of facts which show or tend to show that the order of the Court of Appeal was obtained by a fraud practised on the court below”.
- The Master of the Rolls stated (at p. 299):
“If there were no other remedy I should be disposed to think that the relief now asked ought to be granted, for I should be slow to believe that there were no means whatever of rectifying such a miscarriage if it took place; but I am satisfied that there is another remedy.”
- The Master of the Rolls then went on to point out that where a fraud has been practised on a court it is possible to bring a fresh action to impeach the original decree and obtain justice by so doing if the fraud is established to have occurred. The Master of the Rolls added that as there was this alternative remedy there was “no necessity for straining” the meaning of the legislation which established the Court of Appeal. He then concluded that if the Court of Appeal “has once determined an appeal, it has no further jurisdiction”. He added that the original jurisdiction of the Court of Appeal is “limited to that which is necessary for the determination of any appeal, and the amendment, execution, and enforcement of any order made on such an appeal”. James LJ took the same view. The third member of the court, Baggallay LJ concurred, though he acknowledged that initially he had “felt great hesitation in negativing the proposition that there was jurisdiction in this Court to rehear an appeal” where a judgment had been pronounced or obtained by fraud.
- In contrast, there are dicta which suggest that, in exceptional circumstances, the Court of Appeal might have jurisdiction to re-open an appeal; see, for instance, the observations of Cotton LJ in Birmingham and District Land Company v London and North Western Railway Company  34 Ch.D 261 at p.277 and in Ex parte Banco de Portugal  14 Ch.D 1 at p.6. We are about to refer to some more recent observations to similar effect, but we believe that Mr Corner is correct to submit that there is no decision which is in direct conflict with Flower v Lloyd and Hession v Jones  2KB 421.
- Before turning to Mr Eder’s argument, it is desirable to note that, while, if a fraud has taken place a remedy can be obtained, even if the Court of Appeal has no “jurisdiction”, it does not necessarily follow that there are not other situations where serious injustice may occur if there is no power to reopen an appeal. We stress this point because this court was established with two principal objectives. The first is a private objective of correcting wrong decisions so as to ensure justice between the litigants involved. The second is a public objective, to ensure public confidence in the administration of justice not only by remedying wrong decisions but also by clarifying and developing the law and setting precedents. (See the White Book Service 2001 paragraph 52.0.3.)
- There can, of course be an appeal to the House of Lords from decisions of the Court of Appeal. However, the House of Lords is not in a position to hear more than a minority of the appeals which litigants would wish to bring. The number of Lords of Appeal in Ordinary is limited to twelve, and they are required to sit both in the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. It would not be practical nor proportionate or appropriate for the House of Lords to be involved in resolving the type of issue which is raised by Mr and Mrs Lawrence in this case, relying as it does essentially on fresh evidence for re-opening the appeal.
- In addition, there are cases where there is no right of appeal to the House of Lords if the party seeking to have a decision of first instance set aside has been refused permission to appeal to the Court of Appeal. If there is no more appropriate form of relief, then in relation to decisions in the county court (but not the High Court), it is possible that a remedy might be available if an application for judicial review were made. Such an application, however, would be subject to the limitations inherent in an application for judicial review, namely that it is not a procedure which is suited to the resolution of issues of fact.
- Against this backcloth, Mr Eder submitted that in the special circumstances of this case, the Court of Appeal does have jurisdiction to review its previous judgment and to order a rehearing of the appeal. He advanced three alternative grounds for asserting that such a jurisdiction exists. They are:
i) that there is a jurisdiction conferred by the County Court Rules as transposed to the Court of Appeal;
ii) that a jurisdiction exists by analogy with the Court of Appeal’s apparent jurisdiction in the case of fraud, as suggested in Wood v Gahlings (unreported, 4 November 1996) (transcript CAT 96/1525); and
iii) that by analogy with cases where the implementation of an order needs supervision, the Court of Appeal retains jurisdiction to revisit an appeal judgment in special cases.
- We will deal with those three situations in turn:
Jurisdiction based upon the County Courts Rules
- This argument stems from s.15(3) SCA 1981 (see para 20 above), which provides that the Court of Appeal has “all the authority and jurisdiction of the court or tribunal from which the appeal was brought” for all purposes of or incidental to an appeal. Unlike the position generally in the High Court, where there is no provision of the rules giving the court power to order a re-trial or to set aside a verdict, the county court has long had the power to order a re-hearing. (See BT v BT  2 FLR 1 at pp.6ff and 16ff for Ward J’s historical account of the differences between the jurisdiction and powers of the High Court and county court in this context which was justifiably described by Mr Eder as masterly.)
- The power to order a re-hearing in the county court is now contained in CCR Order 37 Rule 1 which has been retained by CPR Part 50.
- The existence of this power is undoubted. However, we cannot accept Mr Eder’s submission that this power provides a solution to the jurisdictional problem we are considering in the case of appeals to the Court of Appeal from the county court. The submission begs the question as to whether the Court of Appeal has jurisdiction. If, but only if, it has jurisdiction to reopen the appeal will the Court of Appeal be able to exercise the powers of the county court to order a rehearing. In other words, the difficulty is that unless the Court of Appeal retains jurisdiction to reopen the appeal it cannot exercise the county court’s jurisdiction to order a rehearing. The argument rightly establishes the width of the court’s powers if it has jurisdiction, but it does not help to create the jurisdiction.
Grounds of jurisdiction 2 and 3; by analogy with Wood v Gahlings and retained jurisdiction.
- Mr Eder’s second and third grounds for establishing jurisdiction are conveniently taken together. The second ground is founded upon dicta contained in judgments in this court in Wood v Gahlings  CAT 96/1525.
- Wood v Gahlings is a case in which two members of the present constitution, namely Lord Woolf (then Master of the Rolls) and Brooke LJ, were sitting, together with Aldous LJ. It is a case where the Court of Appeal had ordered a retrial and as a result of the decision on the retrial it was alleged on a further appeal to the Court of Appeal that a fraud had been practised, not on the court of trial but on the Court of Appeal. The relevant ground of decision of this court on the second appeal was that the allegation of fraud had not been sufficiently clearly made out but Lord Woolf and Aldous LJ made obiter remarks suggesting that there was power in this Court in the appropriate circumstances to intervene if actual fraud could be established.
- In James v Williams  CP Rep 42 Peter Gibson LJ reviewed the authorities including Wood v Gahlings and assumed, without deciding, that the court had jurisdiction to entertain an application to set aside a perfected order of another division of the court on the ground that the opposing party had been guilty of fraud that materially contributed to the decision sought to be set aside.
- Fraud has always been treated as an exceptional case, and the dicta in these cases do not provide a foundation for answering the issue of jurisdiction which is before us. If, however, it is arguable that the Court of Appeal is able to re-open a decision where it has been obtained by fraud, this opens the door to the argument that there is jurisdiction to re-open an appeal in other exceptional cases.
- Mr Eder’s third ground is founded upon the fact that in special and exceptional circumstances, the Court of Appeal has exercised a power to reopen its judgments, in order to oversee and regulate the implementation and enforcement of its own orders.
- These cases have involved appeals in family cases involving children. Dicta in some of the judgments address the possibility that this court's power of review might extend as far as setting aside the order in question. Thus in Re: C (A Hague Convention Case) (1999) Transcript EC3 1999 - 7466B1, the House of Lords had refused to grant a petition and so the case rested with the Court of Appeal. The court decided in that case to hear the merits of an application to set aside the decision without determining the issue of the jurisdiction of the court to revisit its own final decisions. In relation to this point the President said:
“There is no doubt that there is a serious question mark, to say the least, as to whether or not the Court of Appeal has any jurisdiction to revisit its own final decisions. These are, of course, civil proceedings like any other civil proceedings. But, unlike other civil litigation, in all family cases there is a continuing situation.… Specifically, in Hague Convention cases, the court does not make a decision, yes or no, and then wash its hands of the result. This court inevitably has a continuing jurisdiction for the purpose of implementation; as it has in other forms of civil litigation, but particularly in family cases.”
- In Re: J (a child) (Transcript no. 2000/230 7 February 2000) an application was made to the Court of Appeal for leave to set aside an order of the court, after an oral hearing, refusing permission to appeal. The application was dismissed on the ground that as it did no more than challenge the merits of the decision, the court had no jurisdiction to re-open the case. In the course of her judgment, however, the President said (at para 8):
“It is possible, though I would not like to be too encouraging about it, that this court, as the final court on applications for leave, may, in the most exceptional circumstances, have the power to revisit its own decisions. Miss Golden did pray in aid a decision of this court of which I was a member in Re: C (A Hague Convention Case), unreported, 1st November 1999. But the point of that case was that we said that you could revisit an order for the purpose of implementing it, and there was no suggestion in the judgments in that court that it would be for the purpose of setting aside an earlier order and substituting another. But I can see the possibility of a residual power in the court with the final decision-making process, which may extend to the Court of Appeal as the final court (as it is, since the decision in Lane v Esdaile) on applications for permission to appeal, that if it can be demonstrated that there is some factor outside the decision in the case itself that stands out, then it may be necessary to set that order aside. It would have, in my view, to be a factor that flawed the decision, and a factor which was outside the ambit of the decision itself. For instance, that the court had read the wrong papers in order to come to a decision or the fact that the court might not be competent to hear the case.”
- In agreeing that the application should be dismissed, Robert Walker LJ said (at paras. 16-20):
“In my judgment the circumstances of this case come nowhere near to the very limited circumstances in which the refusal of permission to appeal by the Full Court, pronounced in open court, can subsequently be challenged (whether by way of further appeal, application to set aside the decision or in any other way). Without in any way attempting a comprehensive statement of what those circumstances might be, it is possible to note three categories which are exceptional.
The first (which I mention only for completeness) is the familiar power under the slip rule to correct an order before it has been perfected; although in the circumstances of refusal of permission to appeal that is unlikely to be in point.
Another case mentioned by my Lady, the President, is the possibility (which was noted in the Hague Convention case of Re: C, decided by this court on 1st November 1999) that the working out of an order made by the Full Court might be varied under an express or implied liberty to apply for the purposes of implementing the previous order.
That leaves the third, and for present purposes most relevant, category, that is a very limited residual class of cases in which in quite extraordinary circumstances a decision might be revisited. That class was tentatively described by Lord Donaldson MR in Daisystar v Town and Country Building Society  2 All ER 321, 324 when, after referring to a passage in the judgment of Mustill LJ in Aden Refinery v Ugland Management  QB 650, at page 666, Lord Donaldson said:
“For my part, I would affirm that comment by Mustill LJ. [That was a comment in relation to judicial impropriety.] While I cannot and do not contemplate bias, whimsy or personal interest in the judges of this court, mischance is always a remote possibility: if, for instance, a Lord Justice had pre-read two cases and, owing to mischance and perhaps the absence of counsel or gross incompetence by counsel, in the course of the argument it was never borne in on him that the case upon which counsel was addressing him was not in fact the case to which he was applying his mind. I can see that, in those circumstances, it could be argued that there had not been a decision and, if there was no decision, quite plainly s.54(6) does not apply.”
(The reference was to section 54(6) of the Supreme Court Act 1981.)”
- In concurring, May LJ observed that if, which he did not decide, the Court of Appeal had a jurisdiction similar to that exercised by the House of Lords in ex parte Pinochet (No.2) (see para. 8 above), it was a power only to be exercised in exceptional circumstances.
- The history of the Pinochet litigation is so well known that no statement of the facts is necessary. However, in the special circumstances of that case the House of Lords exercised a jurisdiction to rehear an appeal because of the alleged bias of one of the members of the constitution who first heard the appeal.
- Lord Browne-Wilkinson stated the general principle in these terms (at 132 D-F):
“[I]t must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of this House in this regard and therefore its inherent jurisdiction remains unfettered. In Broome v Cassell & Co Ltd (No.2)  AC 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.
However, it should be made clear that the House will not reopen any appeal save in circumstances, where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.”
- Those words of Lord Browne-Wilkinson are clearly focussing on the special position of the House of Lords as a final appellate court. They cannot therefore automatically be applied to this court. Nonetheless as we have pointed out, in some cases no appeal will lie to the House of Lords and in others an appeal to the House of Lords will not be appropriate. Thus for practical purposes in many cases this court is the final court of appeal. The difference between this court and the House of Lords is therefore one of degree, and it has changed over the years. While there will be situations where this court could and will say, if it has this jurisdiction, that the would-be appellant must seek to appeal to the House of Lords, there are other situations where to require this would be wholly inappropriate because there would be no realistic prospect of the House of Lords hearing an appeal.
- The fact that the House of Lords is generally the final court of appeal and the Court of Appeal is generally an intermediate court of appeal is not the only distinction between the two tribunals. The approach which the Court of Appeal adopts to giving permission to appeal to this court differs from the approach which the House of Lords adopts when deciding whether to accept an appeal. In giving permission to appeal to this court, this court is primarily concerned with correcting injustice in the particular case to which the application for permission relates. If there is a sufficient prospect of the appeal succeeding permission to appeal will normally be given as a matter of course. In the case of an appeal to the House of Lords it is not enough to show a sufficient prospect of the appeal succeeding. The would-be appellant has to show in addition that the case is of such importance that it justifies the attention of the House of Lords.
- It is the House of Lords which is the best judge of whether a particular case meets this test. It is the House of Lords which is the best judge of whether its limited judicial resources are properly deployed in hearing a particular appeal. That is why this court rarely exercises its jurisdiction to give permission to appeal to the House of Lords.
- However, there are some cases where it is obvious that the House of Lords should hear an appeal and then this court gives permission. To do otherwise causes the litigants expense which is unnecessary and squanders the judicial resources of the House of Lords. Equally, there are some cases where it is obvious that the case is one where it is inappropriate for there to be an appeal to the House of Lords. In such a case it is obvious that permission, irrespective of the merits of the appellant, will not be given even if there is a petition to the House of Lords. If a case falls within this category, it would not be in accord with the purposes for which this court was established for it not to accept the reality of the situation and to decline to recognise a jurisdiction which it would otherwise have, because there is a theoretical, though not a real, right of appeal to the House of Lords. In such a case this court is for practical purposes the final court of appeal and if this court is not prepared to ensure justice is done, justice will not be done.
- We will set out later how we propose to reconcile the position of this court as an intermediate appellate court with the position of the House of Lords as the final court of appeal. It is the reality of the situation which means that we cannot, as Sir George Jessel MR did in Flower v Lloyd, take refuge in the fact that there is an alternative remedy. If there is no effective right of appeal to the House of Lords and this court is the only court which can provide a remedy then in our judgment there can arise the “exceptional circumstances” to which Russell LJ referred in Barrell.
- If, as we believe it is necessary to do, we go back to first principles, we start with the fact which is uncontroversial, that the Court of Appeal was established with a broad jurisdiction to hear appeals. Equally it was not established to exercise an originating as opposed to an appellate jurisdiction. It is therefore appropriate to state that in that sense it has no inherent jurisdiction. It is, however, wrong to say that it has no implicit or implied jurisdiction arising out of the fact that it is an appellate court. As an appellate court it has the implicit powers to do that which is necessary to achieve the dual objectives of an appellate court to which we have referred already (see para 26 above).
- As to these powers, Lord Diplock, who perhaps speaks on a subject of this nature with the greatest authority of any judge, has dealt with the inherent power conferred on a court, whether appellate or not, to control its own procedure so as to prevent it being used to achieve injustice.
- We would give an illustration of Lord Diplock's approach. It is taken from his speech in Bremer Vulcan v South India Shipping  AC 909 at p.977C-H:
“The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff’s choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.
The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an “inherent power” the exercise of which is within the “inherent jurisdiction” of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.”
- In our judgment the final words of Lord Diplock, “the doing by the courts of acts which it needs must have power to do in order to maintain its character as a court of justice” express the situation here under consideration exactly. If more authority is required, reference may be made in a very different context to the speech of Lord Morris of Borth-Y-Gest in Connelly v DPP  A.C. 1254, 1301 where Lord Morris said:
“There can be no doubt that a court which is endowed with particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”
- Earlier judgments referring to limits on the jurisdiction of this court must be read subject to this qualification. It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.
- One situation where this can occur is a situation where it is alleged, as here, that a decision is invalid because the court which made it was biased. If bias is established, there has been a breach of natural justice. The need to maintain confidence in the administration of justice makes it imperative that there should be a remedy. The need for an effective remedy in such a case may justify this court in taking the exceptional course of reopening proceedings which it has already heard and determined. What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy. The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations. Where the alternative remedy would be an appeal to the House of Lords this court will only give permission to reopen an appeal which it has already determined if it is satisfied that an appeal from this court is one for which the House of Lords would not give leave.
- Today, except in a few special cases, there is no right of appeal without permission. The residual jurisdiction which we have been considering, is one which should only be exercised with the permission of this court. Accordingly a party seeking to reopen a decision of this court, whether refusing permission to appeal or dismissing a substantive appeal, must apply in writing for permission to do so. The application will then be considered on paper and only allowed to proceed if after the paper application is considered this court so directs. Unless the court so directs, there will be no right to an oral hearing of the application. The court should exercise strong control over any such application, so as to protect those who are entitled reasonably to believe that the litigation is already at an end.
- In due course the Civil Procedure Rules Committee may wish to consider whether rules or a practice direction setting out the procedure should be introduced.
THE BIAS ISSUE
- The bias which is alleged here is in the court of first instance and not the appellate court. This does not mean that the jurisdiction to which we have referred cannot exist. It is, however, important to have in mind that what the Lawrences are seeking to do is to adduce further evidence of bias after this court has already considered an appeal where the issue of bias was raised and it was decided that no case of bias on the part of the deputy circuit judge was made out.
- Before turning to examine in more detail the facts of this case, it is convenient to make some comments of a general nature as to how allegations of possible bias should be dealt with by the judiciary.
- While before the Pinochet litigation an allegation of bias in the court was a rare event, such complaints are now becoming increasingly prevalent. In Locabail (UK) Limited v Bayfield Properties Limited  QB 451 after hearing a number of appeals at the same time this court sought to give guidance as to the principles which should be applied. Fortunately, subsequently, in a speech of Lord Hope in Magill v Porter and Weeks  UKHL 67 at –, the House of Lords has put to rest the conflicting views as to how the test in cases of apparent bias should be expressed. It can now be said that the approach should be:
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.”
- The fact that the observer has to be “fair minded and informed” is important. The informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction. Those legal traditions and that culture have played an important role in ensuring the high standards of integrity on the part of both the judiciary and the profession which happily still exist in this jurisdiction. Our experience over centuries is that this integrity is enhanced, not damaged, by the close relations that exist between the judiciary and the legal profession. Unlike some jurisdictions the judiciary here does not isolate itself from contact with the profession. Many examples of the traditionally close relationship can be given: the practice of judges and advocates lunching and dining together at the Inns of Court; the Master of the Rolls’ involvement in the activities of the Law Society; the fact that it is commonplace, particularly in specialist areas of litigation and on the circuits, for the practitioners to practise together in a small number of chambers and in a small number of firms of solicitors, and for members of the judiciary to be recruited from those chambers and firms.
- It is also accepted that barristers from the same chambers may appear before judges who were former members of their chambers or on opposite sides in the same case. This close relationship has not prejudiced but enhanced the administration of justice. The advantages in terms of improved professional standards which can flow from these practices have been recognised and admired in other jurisdictions. Again by way of example, in the United States they have in recent years established the rapidly expanding American Inns of Court modelled on their English counterparts with the objective of improving professional standards.
- The informed observer will therefore be aware that in the ordinary way contacts between the judiciary and the profession should not be regarded as giving rise to a possibility of bias. On the contrary, they promote an atmosphere which is totally inimical to the existence of bias. What is true of social relationships is equally true of normal professional relationships between a judge and the lawyers he may instruct in a private capacity.
- A further general comment which we would make, is that judges should be circumspect about declaring the existence of a relationship where there is no real possibility of it being regarded by a fair minded and informed observer as raising a possibility of bias. If such a relationship is disclosed, it unnecessarily raises an implication that it could affect the judgment and approach of the judge. If this is not the position no purpose is served by mentioning the relationship. On the other hand, if the situation is one where a fair minded and informed person might regard the judge as biased, it is important that disclosure should be made. If the position is borderline, disclosure should be made because then the judge can consider, having heard the submissions of the parties, whether or not he should withdraw. In other situations disclosure can unnecessarily undermine the litigant’s confidence in the judge.
- If disclosure is made, then full disclosure must be made. This case demonstrates the danger of making partial disclosure. If there has been partial disclosure and the litigant learns that this is the position, this is naturally likely to excite suspicions in the mind of the litigant concerned even though those concerns are unjustified.
- The facts of the present application have to be considered against the facts which were already known to this court when it gave its judgment on 25th January 2001 ( EWCA Civ 119). On that occasion the court was presided over by Peter Gibson LJ sitting with Chadwick and Keene LJJ. The relevant facts of which the court was then aware are set out in Peter Gibson LJ’s judgment. He stated:
“14. The second ground of appeal relates to the appearance of bias, which, if established, would mean that the appeal must be allowed. The Deputy Judge, Mr Lawrence points out, was a client of the claimants' solicitors. That fact was not disclosed until the fourth hearing conducted by the Deputy Judge on 9th November 1999. The Deputy Judge did not disclose the fact that at that time he was to meet with persons from the claimants' solicitors on 11th November 1999 to execute a codicil and have it witnessed, that is to say immediately after hearing the closing submissions and the very day before he was to give judgment, and that he was to visit the offices of the claimants' solicitors.
15. Mr Lawrence adds to those points a number of other points. They include that the claimants' solicitors acted for the Deputy Judge first in November 1995 to draft his will and his wife's will; that they drafted a codicil for the Deputy Judge on his instructions in April 1998; that when rejecting the defendants' application on 21st September 1999 relating to whether Judge Viljoen should conduct the trial, the Deputy Judge did not mention his relationship with the solicitors, as he had not done at the time when the Deputy Judge was hearing the evidence of Mr Moore, nor did the Deputy Judge mention that relationship when he rejected the application for summary judgment on 28th October, although it is clear that he was by then aware who the claimants' solicitors were; that the Deputy Judge, in late October or early November 1999, arranged with the private client partner who had drafted the will and codicil that that partner should prepare a further amendment to the wills of the Deputy Judge and his wife and arrange to call on the solicitors to execute the further codicil on 11th November; that although the Deputy Judge at the start of the hearing on 9th November told the parties that the claimants' solicitors had prepared his will and held it, he had not revealed anything further about his relationship with the solicitors; so that when the defendants were asked, as they were, together with the claimants' counsel, whether the relationship that was revealed between the Deputy Judge and the claimants' solicitors was of concern to them and obtained their acknowledgement that it was not, a less than full account had been given to the defendants.
16. Mr Lawrence further points to the fact that on 10th November counsel for the claimants, Mr Cowen, was approached by either the judge, or the judge's clerk, or the usher - Mr Cowen cannot remember which - in the area outside the robing room and was told of the judge's intention to impose a timetable for the trial as a whole and was asked to pass on that statement to Mr Lawrence, which Mr Cowen did immediately. That, Mr Lawrence says, was an approach made by the Deputy Judge to counsel for the claimants not in the presence of the defendants.
17. Mr Lawrence further points out that when the visit to the claimants' solicitors took place on 11th November for the Deputy Judge and his wife to complete their codicils, their signatures were witnessed by a partner in the claimants' solicitors and a secretary who had worked in the litigation department for six years and whose initials had appeared on some correspondence in the case. Mr Lawrence made vigorous protests over this. At the conclusion of the judgment he sought the Deputy Judge's assistance as to whether he had the basis of a complaint against the Deputy Judge for not telling the defendants of the Deputy Judge's association with the claimants' solicitors. Not surprisingly, the Deputy Judge did not proffer such advice. But Mr Lawrence has complained to the Lord Chancellor, who has investigated the matter. No doubt on the basis of what the Lord Chancellor was told by the Deputy Judge, the Lord Chancellor, in a lengthy letter to Mr Lawrence dated 7th April 2000, deals with the various matters of complaint, but rejects all of them. However, in that letter - and Mr Lawrence has drawn specific attention to this - the Lord Chancellor says of the occasion when the Deputy Judge, with his wife, called at the offices of the claimants' solicitors:
"He spoke to nobody who had any connection with the case he was hearing, and he has given me his absolute assurance that at no point has he discussed your case, or indeed any case whilst he has been hearing it, with the solicitors."
18. The Deputy Judge has set out in a letter to the Civil Appeals Office his reaction to the complaints of Mr Lawrence. He says that before 11th November he had not met either the partner or the secretary who witnessed his and his wife's signatures on the codicil, that the full extent of the Deputy Judge's association with the solicitors was in relation to the preparation and execution of the will and the two codicils, that he knew no partner or other employee of the solicitors personally, that he did not regard them as his personal solicitors as other firms in the City had acted for him, and that the claimants' solicitors were not his executors, trustees and administrators. He says that the solicitors were instructed because they were a large firm in Watford, where he was sitting, and he wished to save going to the City. He further says that he does not consider that there was any conflict of interest and that at the time when he heard the evidence of Mr Moore, he had no idea who were the claimants' solicitors. The Deputy Judge was a Circuit Judge from 1978 to 1997. The Lord Chancellor authorised him to continue to sit, even though he had reached the age of 73 at the beginning of November 1999. Mr Lawrence at one time was suggesting that the Deputy Judge had a conflict of interest; but that, in my judgment, was unsustainable. It is not suggested that the Deputy Judge was interested in any way in the outcome of the litigation.
20. It is not altogether clear precisely what was said by the Deputy Judge to the defendants and Mr Cowen on 9th November in the Deputy Judge's room at the start of the case. Mr Lawrence has told us that the Deputy Judge said, or gave the impression, that his relationship with the claimants' solicitors over his will had ended some time previously. There can be no doubt that the defendants were told that the solicitors continued to hold the Deputy Judge's will. There is also no doubt that the Deputy Judge did not indicate that he would be meeting at least two people from the claimants' solicitors for the execution of his will. We are told by Mr and Mrs Lawrence that the Deputy Judge said that he could not remember the name of the partner concerned.”
- The response of the court to those facts was:
“21. What then is the fair-minded and informed observer to make of this? Is it, as Mr Lawrence submits, that the Deputy Judge was seeking to conceal his true relationship and that he had something to hide and indeed was leaving a misleading impression? Mr Lawrence submits that this is so. He points to the fact that the Deputy Judge for a long time was not prepared to reveal the names of the two witnesses to his codicil when it was executed on 12th November. He says that the Deputy Judge ought to have inquired as to who those persons were, and if he did not know that one of the persons witnessing his signature worked in the litigation department and had been involved in some capacity in correspondence with the Lawrences, he should have made it his business to find out and should not have misled the Lord Chancellor into making the statement which he did.
22. It seems to me that the fair-minded and informed observer would recognise that every judge lives in the community and that in his private life, away from his judicial life, he may need to use the service providers, including solicitors. That observer would also appreciate that solicitors, by the very nature of their work, have many clients the affairs of each of whom must be kept separate from those of another client. The use by a judge of the services of a firm of solicitors for his personal purposes, such as for drafting his will, would not, I think, give rise to any expectation, or even any suspicion, in the fair-minded and informed observer that the judge in his judicial capacity would, by reason of that connection over his will, be untrue to his judicial oath and favour another client of those solicitors. The observer would take note of the fact that at the time when the Deputy Judge heard the evidence of Mr Moore he was not aware who were the solicitors of the claimants and that, having heard that evidence, the Deputy Judge was the obvious person to complete the hearing of the trial. Indeed, if he had stood down, there would at least have been a risk that Mr Moore's evidence would have to be taken again in front of another judge, thereby adding disproportionately to the costs of what is essentially a very minor dispute. The observer would take note of the fact that the Deputy Judge volunteered the information that the claimants' solicitors had acted for him in preparing his will and that the Deputy Judge had obtained the express confirmation of the parties that there was no objection to him continuing to preside in the case. The observer would, in my view, have attached particular importance to the fact that the will, as the Deputy Judge told the defendants, was being kept by the claimants' solicitors. That in itself would indicate that there was a continuing relationship with the solicitors and that it was possible that the will might need to be altered in some way (and codicils are frequently made after a will has been executed), when probably there would be contact between the Deputy Judge and those solicitors. As the Deputy Judge obtained confirmation from the defendants that despite his connection with the solicitors over his will there was no objection to him continuing to sit, the observer would reasonably regard the completion of a codicil, which the solicitors had been asked by the Deputy Judge to prepare, as within the reasonable scope of what had been cleared with the parties.
23. The witnessing of the signature of the testator on a testamentary document, as the informed observer would know, is a mere ministerial task, and the fact that a secretary in the litigation department of the solicitors happened to be available to be such a witness is in itself neither sinister nor significant. The observer would note that the Deputy Judge has made clear that he did not discuss the claimants' case against the defendants when he went to complete his codicil. .
24. The passing of a message to the claimants' counsel by the Deputy Judge, or the court usher, or the Deputy Judge's clerk would not, in my view, be regarded by the observer as of any significance whatsoever. There is no evidence that the Deputy Judge was consulting Mr Cowen in passing that message to Mr Cowen and Mr Lawrence. I have already stated what Mr Cowen has said occurred. In my judgment, it is impossible to regard that incident as indicating any appearance of bias.
25. It is unfortunate that in the letter to Mr Lawrence from the Lord Chancellor a factual error has been made in the sentence which I have cited. But the mere fact that a witness of the Deputy Judge's signature to his codicil was a secretary who had some connection with the case, in that her initials appear (with the initials of another) on letters to the defendants in relation to this case, would not appear to the fair-minded observer to be of any importance. Nor, in my judgment, can there possibly be some sort of duty on the Deputy Judge to have investigated precisely what functions were performed in the affairs of the claimants' solicitors by a mere witness to his signature.
26. Looking at the matter objectively, I am wholly unable to see that the fair-minded and informed observer would conclude from the various matters to which Mr Lawrence has attached importance that this was a case in which there has been an appearance of bias. For these reasons, therefore, I do not accept his arguments on this ground.”
- We respectfully endorse that approach.
- We also endorse the approach of Chadwick LJ:
“32. In the present case the material facts included the disclosure by the judge that the solicitors instructed by the claimants held his will. Whether or not he needed to disclose that fact in the circumstances of this case is not a matter which I find it necessary to decide. The fact is that he did disclose that fact and that that disclosure led no-one to object. What he did not disclose was that those solicitors had current instructions to amend that will or, perhaps more accurately, to prepare a codicil; nor did he disclose that he had made an appointment to attend on those solicitors at their offices for the purposes of executing the codicil. Whether or not, having disclosed that the solicitors held his will, he would have been wise to disclose those additional matters also, is, again, something which I do not think it necessary to decide. The relevant question is not whether the judge was wise to act as he did; nor whether other judges might have acted differently. The relevant question is whether, having disclosed that the solicitors held the will, his failure to disclose also that the solicitors were currently instructed in relation to it gives rise to a fear in a fair-minded and informed observer of a real danger that the judge's judgment would be influenced by that current relationship.
33. In my view, no fair-minded observer would reach the conclusion that a judge would so far forget or disregard the obligations imposed by his judicial oath as to allow himself, consciously or unconsciously, to be influenced by the fact that one of the parties before him was represented by solicitors with whom he was himself dealing on a wholly unrelated matter. It is a matter of everyday experience that judges are acquainted, in one capacity or another, with those who appear before them as solicitors or advocates. That is a matter of which an informed observer would be well aware. The informed observer would be well aware, also, that judges, solicitors and advocates can be expected to recognise that it is a matter of paramount importance that the public should retain confidence in the administration of justice; and to recognise that they are required to conduct themselves accordingly. But judges, solicitors and advocates are entitled to expect from a fair- minded and informed observer a corresponding recognition that they will endeavour to be true to their judicial oath and to the standards set by their respective professional codes. It is not to be assumed, without cogent evidence to the contrary, that a judge's acquaintanceship, whether social or professional, with those conducting litigation before him in a professional capacity will lead him to reach a decision in that litigation that he would not otherwise reach on the evidence and the arguments.
34. The judge kept the appointment which he had made. He executed his will at the solicitors' offices on the evening of 11th November 1999, after the completion of argument in the case and before giving judgment on the following morning. The mere fact that he attended to execute his will in accordance with the appointment which he had made adds nothing, in my view, to the matters to which I have already referred. It was an incident of the current professional relationship between the judge and his solicitors.
35. The more relevant question is whether his attendance at the solicitors' offices would lead a fair-minded and informed observer to infer that he might use the opportunity to discuss the litigation which he had been hearing that day with someone in those offices whose views would impact upon his mind; or, to revert to the test which is to be applied, that the fair-minded and informed observer would infer that there was a real danger that that might occur.
36. The chance of a judge meeting out of court a solicitor or advocate who is currently appearing before him in court is a chance which has to be accepted unless judges are to lead lives of cloistered isolation. The danger lies not in the chance meeting - or even in a meeting planned for some purpose unrelated to the litigation - but in the discussion of the litigation in the course of that meeting. The fair-minded and informed observer would, in my view, credit both judge and solicitor (or advocate) with a recognition that discussion of current litigation would be wholly improper; and, indeed, would be likely to be embarrassing to either or both of them. He would not infer, without cogent evidence to the contrary, that the judge, solicitor or advocate would forget the behavioural norms by reference to which their daily lives are conducted.
37. It may well be that, had this matter been handled differently, the suspicion that the appellants now undoubtedly hold of the judge's partiality would never have arisen. But I repeat that the test is not whether the appellants think that the judge may have been biased; but whether a fair- minded and informed observer would conclude that there was a real danger of bias. I have no doubt that a fair-minded and informed observer, taking account of all the material facts, would not reach that conclusion.”
- The new evidence upon which the Lawrences would now seek to rely is the fact that it is now known that the judge was not rendered a bill for the work which the solicitors carried out on his behalf. Their explanation for this is that the work was so modest it would not have been economic for them to render an account, though it is right to note as Mr Lawrence points out, that on a previous occasion they did render an account for a relatively nominal sum.
- It is forcefully urged by Mr Eder, in submissions which were endorsed by Mr Lawrence personally when we allowed him to make short oral submissions to us, that the conduct of the deputy judge was “outrageous”. The fact that disclosure, having been made in part, was not followed by full disclosure was described by Lord Chancellor in the correspondence as “unfortunate”. We have already indicated the undesirability of partial disclosure. This undesirability is underlined if the disclosure which is made appears to be made reluctantly as happened here. No doubt in Mr Lawrence’s mind everything was given a more sinister twist because he would have preferred another judge to have tried the case. He had already made an application, not based on bias, for the case to be heard by another judge which was refused by the deputy judge.
- However, we have not only carefully considered the “new evidence” but we have also reviewed the facts as a whole, applying the now established test for bias, and having done so we do not accept that any case of apparent bias on the part of the judge is made out.
- We regard it as unthinkable that an informed observer would regard it as conceivable that a judge would be influenced to favour a party in litigation with whom he has no relationship merely because that party happens to be represented by a firm of solicitors who are acting for the judge in a purely personal matter in connection with a will. There is no reason to doubt the explanation for a bill not being rendered. There is no evidence that the judge knew that this was to be the case, but even if he did, it would not alter our view.
- This is not a situation where we would have given permission for the new evidence to be considered if permission had been sought in accordance with the procedure set out in paragraph 56 above. The judge was not required to raise his personal relations with the solicitors and it was a mistake to do so. After he had made that mistake, his subsequent conduct fuelled the Lawrences’ suspicions. Regrettably the Lawrences’ response to what has happened has been a wholly disproportionate suspicion. They are not in a position to be objective, as they cannot accept a court could decide this unfortunate litigation against them unless there was bias.
- The fact that their feelings are no doubt genuine cannot be allowed to dictate our conclusion. To decide that the circumstances on which they rely could give rise to a suspicion of bias would put at risk the way in which the judiciary and the legal profession conduct their relationship; a relationship which has long served the interests of justice in this country.
- The application for permission is granted to enable this judgment to be the subject of application for leave to appeal to the House of Lords. Permission having been granted to make the application, the application is dismissed.
Order: Application allowed; appeal dismissed; stay of enforcement and execution ordered by Brooke LJ on 15 November 2001 be removed; Defendant to pay the Claimants’ costs summarily assessed in sum of £16,000; permission to appeal to House of Lords refused.
(Order does not form part of the approved judgment)
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