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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 >> Howell & Ors v Lees Millais & Ors  EWCA Civ 720 (04 July 2007)
Cite as:  EWCA Civ 720
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE PETER SMITH)
Strand, London, WC2A 2LL
B e f o r e :
(The Master Of The Rolls)
SIR IGOR JUDGE
(The President Of The Queen's Bench Division)
LORD JUSTICE BUXTON
| PAUL JONATHAN HOWELL
JOHN NEAL THOMPSON
|- and -
|MARCUS LEES MILLAIS
LORNA MILNE JOICEY
FIONA LEES MILLAIS
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr N Le Poidevin (instructed by Taylor Wessing) for the First Defendant
Mr A Steinfeld QC, and Mr J Stephens (instructed by Messrs DLA Piper UK LLP, for the Respondent.
Crown Copyright ©
Sir Anthony Clarke, MR:
"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, or a real danger, the two being the same, that the tribunal was biased."
In Lawal v Northern Spirit  UKHL 35,  ICR 856, Lord Steyn, giving the opinion of the appellate committee, said this:
"The House unanimously endorsed this proposal. In the result there is now no difference between the common law test of bias and the requirements under article 6 of the Convention of an independent and impartial tribunal, the latter being the operative requirement in the present context. The small but important shift approved in Porter has at its core the need for 'the confidence which must be inspired by the courts in a democratic society … public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson  201 CLR 488, 509 [para 53], by Kirby J when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious'. "
i) A judge is automatically disqualified from hearing a case on the ground of apparent bias if, on an assessment of all the relevant circumstances, the conclusion was that the principle of judicial impartiality would be breached [AWG at 6]."
i) This disqualification is not a discretionary case management decision reached by weighing various relevant factors (such as inconvenience, costs and delay) since there was either a real possibility of bias or there was not [AWG at 6]."
ii) The test is, having ascertained all the circumstances bearing on the suggestion that the Judge was (or could be) biased, the court must itself decide 'whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased' [AWG at 7]."
iv) An appellate court is well able to assume the vantage point of a fair-minded and informed observer with knowledge of the relevant circumstances. It must itself make an assessment of all the relevant circumstances and then decide whether there is a real possibility of bias [AWG at 20]."
v) An example of a real danger of bias is where 'there was… animosity between the Judge and any member of the public involved in the case Locabail UK Limited v Bayfield Properties Limited  QB 451 (CA) at 25; the categories of such danger are not closed, "if for any other reason there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections" then recusal would be necessary."
vi) In most cases, the answer, one way or the other will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal (Locabail at )."
vii) Where the hearing has not yet begun, there is scope for the sensible application of the precautionary principle. Prudence normally leans on the side of being safe rather than sorry [AWG at 9]."
"While a reviewing court may receive a written statement from any judge, lay justice or juror specifying what he or she knew at any relevant time, the court is not necessarily bound to accept such statement at its face value. Much will depend on the nature of the fact of which ignorance is asserted, the source of the statement, the effect of any corroborative or contradictory statement, the inherent probabilities and all the circumstances of the case in question. Often the court will have no hesitation in accepting the reliability of such a statement; occasionally, if rarely, it may doubt the reliability of the statement; sometimes, although inclined to accept the statement, it may recognise the possibly of doubt and the likelihood of public scepticism. All will turn on the facts of a particular case. There can, however, be no question of cross-examining or seeking disclosure from the judge. Nor will the reviewing court pay attention to any statement by the judge concerning the impact of any knowledge on his mind or his decision: the insidious nature of bias makes such a statement of little value, and it is for the reviewing court and not the judge whose impartiality is challenged to assess the risk that some illegitimate extraneous consideration may have influenced the decision."
"A current or recent business association with a party will usually mean that a judge should not sit on a case."
The passage of time between the events said to give rise to the apparent bias and the hearing or trial is a relevant factor. This is apparent both from paragraph 7.2.3 and  of Locabail where the court comprising Lord Bingham CJ, Lord Woolf MR, and Sir Richard Scott Vice Chancellor said that:
"The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."
Communications between the judge and AG
"I thought I might have heard further from you as you said. I am a little concerned over the time frame. There are some decisions that I have to make by the end of June which will be affected by our discussions so I do need to progress the matter as soon as possible so I can see where we are going."
Mr Twigden replied on 25 May saying that for financial reasons AG could not take the matter any further. He set out some of the financial detail, to which it is not necessary to refer, and concluded:
"Regrettably, although there was agreement that this was an innovative and good idea, we concluded that the level of investment required cannot be supported in the context of the overall priorities for our business. Our Banking and Corporate practices are our immediate priorities as we seek to build the firm to deliver on our strategy.
"I am sorry that it has taken longer than we originally anticipated to revert to you but a combination of year end, my absence from the office, and very careful consideration of this at the highest levels in our firm, have all contributed to that.
"I wish you all the best for the future."
"As we discussed at our last meeting, we have tested this with our key litigation partners and, of course, Mark is fully aware of this from a management perspective. We have concluded after very careful deliberation and with regret that, at this time in the firm's development and mindful of its current investment priorities, we cannot support this innovative prospect.
"I found your first email insulting and your second one condescending. I do not think the response should have been from you by such emails. You really should have had the courtesy to speak to me."
He then again reverted to the financial position and said of the figures which had been referred to in AG's earlier email:
"They are just artificial figures. It is galling that these are used to knock down a proposal that emanated from you, which was never discussed with me and I would never have agreed it with you if presented in this way. We all agreed it there ought to be substantial benefits if properly sold but at this stage they would be difficult to assess."
He then made some further observations on the figures and concluded:
"I feel you have wasted my time for several months. I am extremely disappointed because contrary to your fine words you have allowed the bean counters to prevail. I am not very impressed with you or your firm at the moment and I do not think the tone of your emails enhances the position."
The Recusal Hearing
"The mere fact that the judge had made a finding against a party on a previous occasion even if he had been critical to that did not found a later objection to the judge sitting in another matter. It was however also plain that where there was any room for doubt as to which course to adopt that doubt should be resolved in favour of recusal."
Mr Crampin concluded his letter as follows:
"For the avoidance of doubt, it is not being suggested that you should never again hear a case in which Addleshaw Goddard are the solicitors on the record. However, it is my advice in this case that in view of the shortness of time since the discussions ended, the tone of the comments you made in your email 31 May and the fact that a partner in Addleshaw Goddard is himself a party, you have no alternative but to recuse yourself.
I have written to my opponents to inform them that I have invited you to recuse yourself for reasons which I am not at liberty to disclose to them."
Mr Crampin wrote to counsel for the other parties saying that he had written to the judge asking him to recuse himself for reasons which he was not at liberty to impart.
"Thank you for your letter of 28 June 2007.
I have considered the contents of the letter most carefully and I do not accept that there is any reasonable perception of judicial impartiality in this case. I do not know Mr Howell and although the litigation as you say is hotly contested he is a party in a professional position and there is no issue which might affect his credibility so far as I am aware.
Your letter rightly observes that it would be impossible to suggest that I would have to recuse myself whenever Addleshaw Goddard is on the record. I do not see how the shortness of time (or for that matter the passage of time) makes any difference to this decision.
If you wish to renew your application then you must make it tomorrow supported with evidence.
I am sure you will appreciate that the discussions you refer to in your letter were confidential. I would hope that you would also keep the contents of those confidential for reasons which should appear to you to be self-evident.
I have copied this letter to your opponents."
"Your Lordship having heard the evidence, I renew my application to you to recuse yourself on the basis that there is a real risk or possibility that your Lordship will not be able to bring to bear, on the determination of the matters in dispute in this case, an open mind and objectivity which is required in the discharge of high judicial office. The reasons that I make that submission to your Lordship are apparent from the terms of the e-mails which were exchanged between you and Mr Twigden and which indicated, or would indicate, to a fair-minded person reading those e-mails, that your Lordship, having made an unsuccessful job application --"
The judge interrupted. He said
"I made no job application. They invited me. That's your first point failing. There is plainly a big difference, Mr Crampin."
"MR CRAMPIN: Having had an unsuccessful discussion or negotiation with Addleshaws, your lordship expressed yourself in strong – intemperate, almost -- anguish.
"MR JUSTICE PETER SMITH: Nonsense. I don't know what part of the country you come from, Mr Crampin, but it's about time you grew up. If you think that's intemperate, then you are on another planet from me. If you thought it was intemperate, then you should have seen the correspondence which didn't trouble Mr Twigden.
"MR CRAMPIN: I'm endeavouring to make a submission, not to engage with your Lordship in badinage of that kind. The question that a fair-minded person –
"MR JUSTICE PETER SMITH: I'm challenging you, Mr Crampin, on your analysis, when you suggest that my correspondence was intemperate. I don't accept that.
"MR CRAMPIN: Well, it's a submission, my Lord –
"MR JUSTICE PETER SMITH: Well, I have rejected it. I've just told you.
"MR CRAMPIN: Your Lordship will no doubt make it part of your judgment in due course. It's a submission I'm making to your Lordship that a fair-minded, reasonable onlooker, reading that correspondence, would come to the view that your Lordship bore a degree of animosity and hostility, even, towards Addleshaws as a result of the way that you thought you had been treated by them. That is what the e-mails disclose.
"MR JUSTICE PETER SMITH: I don't agree the e-mails disclose that at all. The e-mails simply disclose that, and Mr Twigden has confirmed it today, that the reasons they gave were not the same reasons when they introduced me, and that I was therefore unimpressed by their change of attitude, which bore no relation to our discussions. But I'm sorry, Mr Crampin, life goes on, I'm afraid. I accept that. I am somewhat surprised that your solicitors are unable to accept that, despite the fact that they were willing to take me into the firm, despite the fact that I had accused a partner on the management firm of negligence, in correspondence which went far beyond that. It was a point which was so trivial, in Mr Twigden's mind, not only did he forget it when he prepared his confidential statement, but he also forgot that he said he would ensure that he would put no objection if that person objected.
"MR CRAMPIN: Well, this is one of the more unusual exchanges that I've taken place –
"MR JUSTICE PETER SMITH: This whole procedure is unusual, but we can't avoid that, because effectively I am being asked to recuse myself, and I'm the person who can deal with it.
"MR CRAMPIN: Your Lordship is in the process of, while listening to my submissions, giving evidence.
"MR JUSTICE PETER SMITH: I'm not giving evidence; I'm reminding you of what Mr Twigden said. I'm not going to decide this case on anything other than the answers Mr Twigden gave, and Mr Twigden confirmed that I did indeed raise those matters, and that they were not sufficient to lead him to believe I couldn't join the firm and that, if anybody objected, he would ensure they would be overruled. That is what his evidence was.
Now given that, and given the seriousness of those matters, it is extraordinary to believe, is it not, that Addleshaws are actually fearful on the basis of these e-mails?
"MR CRAMPIN: I do not think the test is what Addleshaws think --
"MR JUSTICE PETER SMITH: Of course it is.
"MR CRAMPIN: -- it is what a fair-minded person can think."
"MR JUSTICE PETER SMITH: A fair-minded person would think that Addleshaws could not possibly be concerned about those e-mails when they were so unconcerned about somebody who made allegations of negligence against them, and somebody who criticised them in the way in which they conducted the case, didn't stop them contemplating him even becoming a partner in the firm. That shows there's no genuine belief.
Mr CRAMPIN: In my respectful submission, there's all the difference in the world between discussions that were taking place between you and Addleshaws at the time that your future employment was under consideration, and the position you're in now, meaning that your Lordship has adjudicated on the matter …
"MR JUSTICE PETER SMITH: So it's all right to have, as a partner ,somebody who does this, but it's not alright for that person to be a judge? That's just unreal, Mr Crampin. It just shows the lack of genuineness in this evidence."
Pausing there, in that passage the judge was saying that the evidence of Mr Twigden was not genuine or, put another way, not true. No such allegations had been put to Mr Twigden and I see no warrant for them at all. This again seems to me to be evidence of that animosity towards Mr Twigden and AG.
"MR CRAMPIN: I don't think your Lordship is actually going to pay attention to anything further I say on this subject. Your conduct of the matter in the court today is remarkable. My submission to your Lordship …
"MR JUSTICE PETER SMITH: I'm not going to comment on that, Mr Crampin. It does not dignify a comment
"MR CRAMPIN: I'm making the submission that I am.
"MR JUSTICE PETER SMITH: If you're going to say that, you'd better say it with specificity, or you'd better withdraw it, or there might be professional consequences.
"MR CRAMPIN: Your Lordship can take whatever course you'd like to take.
"MR JUSTICE PETER SMITH: No, if are going to say my conduct in court is quite remarkable, you have to say why. In which way do you think my conduct has been remarkable?
"MR CRAMPIN: It is a remarkable proposition that a judge should cross-examine a witness in the basis of what is in the judge's head, which no-one else has seen.
"MR JUSTICE PETER SMITH: Forgive me, Mr Crampin, that's because of the nature of the application because it appertains to particular facts. I have already said to you that I will decide this issue not on things that were in my head, but solely on the evidence that Mr Twigden has given, and he accepted all of my points. So it's his evidence which decides it, and nothing else. Do you have any other, better criticisms of my conduct?
"MR CRAMPIN: My Lord, I have made the submissions I wish to make.
"MR JUSTICE PETER SMITH: I'm sorry, Mr Crampin, I'm not going to allow you to pass over a gratuitous comment saying my conduct is remarkable, any more than anybody else would, without requiring you to be specific.
"MR CRAMPIN: Well, I've indicated why your comment is --
"MR JUSTICE PETER SMITH: Well, that's the one, is it?
"MR CRAMPIN: Hmm?
"MR JUSTICE PETER SMITH: That's the one thing? Because that would have made the application inevitable, because it would mean that the defendants, who have no knowledge of this, can't say anything, and I can't say anything, and therefore you ensure an absolute certainty to your application.
"MR CRAMPIN: No, my lord. The question is, viewing those e-mails, whether, as I say, a fair-minded observer would conclude that --
"MR JUSTICE PETER SMITH: You've already said that.
"MR CRAMPIN: Yes, I have.
"MR JUSTICE PETER SMITH: Well, you don't get better by repeating your submissions. I have that, and I'm aware of the authorities. Do you have anything more to say?
"MR CRAMPIN: No, my Lord.
"MR JUSTICE PETER SMITH: Thank you."
"Nevertheless I do not see how once he [ie Mr Crampin] makes that concession he can support any claim that I should recuse myself. Equally the suggestion that shortness of time is a relevant factor is in my view nonsensical. Either there is a perception that a fair-minded and informed observer with the knowledge of all the relevant circumstances would believe that there would be apparent bias or not I do not see how the passage of time has any impact whatsoever on that perception."
I would accept Mr Flint's submission that that conclusion was wrong in principle as the authorities to which I referred earlier demonstrate. The exchange of emails was only just over a month ago and the reaction of the judge in argument was only last Friday.
"I do not believe that given the matters which were omitted Mr Twigden could have seriously believed that I might not be able to deal with the issues fairly objectively. At the end of the day in any event Mr Howell is a professional trustee one of three and I do not see how anyone looking at it objectively could possibly think given the concession that there can be no objection to me hearing cases where Addleshaw Goddard are involved that there are any genuine grounds for the present application."
He added at paragraph 28:
"As set out above Mr Twigden's evidence was seriously deficient. When the totality of his evidence is evaluated there is no room for doubt. There cannot on his evidence be any possible belief that it shows there is any reasonable objective perception of possible bias and Addleshaw Goddard could not have believed that given the extra material which Mr Twigden acknowledged in response to my questions."
That is an echo of the point made by the judge in the course of Mr Crampin's submissions, to which I have already referred and held to be unsatisfactory.
Sir Igor Judge:
Lord Justice Buxton:
Order: Appeal allowed.