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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Kimyani & Ors v Sandhu  EWHC 151 (Ch) (02 February 2017)
Cite as:  EWHC 151 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| (1) Mrs Sukhvinder Kimyani
(2) Mrs Narinder Purdie
(3) Mrs Nimmi Rattu
|- and -
|Mrs Devinder Sandhu
The Defendant appeared in person
Hearing dates: 13 December 2016
Crown Copyright ©
"I hereby make an application for Master Matthews to recuse himself from this case on the grounds of bias and unfair proceedings. There is a real danger of bias & I object to continuing to hearing case. A hearing before a biased judge is unfair & prejudicial against defendant. Recusal Order."
The application is supported by evidence given in the box under section 10 of the Form N244 and in a witness statement from the defendant dated 3 October 2016.
The sequence of events
Hearing of the claim
"I am satisfied that her work has resulted in substantial financial benefits to the estate, as set out by her."
"that, despite [the defendant's] detailed work, the interests of the beneficiaries as a whole, and [the first claimant] in particular would on balance be best served by a professional administrator, but I shall not make that order if [the defendant] agrees to provide to the claimants' solicitors a further account (to which is annexed appropriate copy supporting documentation) and remits forthwith to [the first claimant] a cheque payable to her in respect of the interim account (and any other outstanding expenses) and immediately informs the claimants' solicitors of details relating to the marketing and sale of Brookwood Road. Generally she will need to respond positively and promptly to any requests for information reasonably and proportionately made by [the claimants' solicitors]. If this does not take place then I will make an order for the appointment of an independent administrator, notwithstanding that the estate is close to being finally administered."
The first interim charging order
Request under CPR Part 18
The outstanding applications
The second interim charging order
Informal recusal request
"After very careful consideration and with respect for your profession, I write this letter and hope that you will also respect my position as an Administrator of my mother's Estate, having completed all duties on 12th March 2012, as per Master Bragge's orders and then having been faced with disgruntled and hostile beneficiaries, many facts unknown to you like adding value over £95,000.00 to the Estate for all beneficiaries . Forfeiture removed. DWP appeal won. All three hostile beneficiaries issued with Police Harassment notices.
I raise my concern with regards to cancelled hearings which were important to me.
Would you please allow the Chief Master to re-assign this case to another Master as I have listed the reasons separately for my decision.(list A-P)
Your interim judgment of 12th July 2016 has already been appealed against.
It would be in our mutual interest for you to step aside and allow me to expedite matters and close this case and deal with things as quickly and promptly as possible with a fair and partial Master.
Courts main aim in dealing with the cases is to have the parties on equal footings, saving expense, dealing with cases efficiently, promptly. Not in this case.
I am grateful for Masters assistance."
"I am writing on behalf of the Chief Master, in response to your letter dated 23rd August 2016.
He has carefully considered your request that another Master should be nominated to your case in place of Master Matthews. He has decided that there is no good reason to transfer the case to another Master.
In considering your letter, the Chief Master has taken account of, amongst other considerations, the document annexed to your letter and your suggestions that Master Matthews should not be dealing with your case in view of his professional connections. The Chief Master does not consider that there is any reason why Master Matthews should recuse himself.
Master Matthews will remain the Master who deals with the claim."
"filing a formal request or application for recusal of Master Matthews from my case with Evidence supporting my application and that no further hearings be allowed until my application is considered".
She referred to her medical condition and asked for advice on procedure. The Chief Master's clerk responded the same day that the application should be made on Form N244, supported by evidence, and these should be served on the other side. He added that the application should be listed before me.
1. I allowed the claimants to serve a long skeleton argument on the defendant at a hearing and then permitted the hearing to go ahead.
2. I was not the master assigned to the case, but would not let other masters deal with it, so the defendant's applications could not be heard urgently.
3. I had a relationship with Mr Roseman's chambers. It is better that I set out the complaint verbatim:
"Master has relationship with Ten Old Square Firm of Advocates, having been a consultant at Withers until 6th July 2015, having been instructed by Ten Old Square in course of his duty as a coroner at Withers, having been listed on seminars as Withers indeed being a party attending seminars and Copf breakfasts on monthly basis. Advocates at Ten Old Square thus have an established relationship with Withers and it will be prejudicial to defendant."
4. Master Bragge gave "Final Judgment" in the defendant's favour to remain administratrix, commending her on her meticulous record keeping, whereas the claimants' application under s 50 failed. But my orders are "opposite to Master Bragge".
1. In this case there has often been a dispute between the parties at the beginning of any given hearing as to whether particular documents had indeed been served by the claimants on the defendant. This may well have been true of skeleton arguments as with other documents. Rather than allow the hearing to become derailed at the outset, I checked to see if the defendant had now got a copy, and had had any opportunity to look at it. If she wanted more time to look at it, she could ask and I would have given it to her. In every case I was astute to see that the defendant was not taken advantage of, and understood the points that were being made against her.
2. I was appointed after Master Bragge retired, and his cases were allocated to me on my appointment. Other deputy masters have in fact dealt with the case in my absence. Normally no other fulltime master than the assigned master would do so. The only exception would be the urgent applications list. As I have already explained, the application that the defendant persuaded the court staff to put in to the urgent list (without the permission of any master, which is not in accordance with the practice) was in my judgment not urgent enough to justify that course, but equally was going to last longer than the 30 minutes allowed.
3. I really do not understand this complaint. In any event it seems that the defendant does not understand that barristers' chambers are not partnerships or law "firms", but groups of competing, self-employed lawyers, who merely share accommodation and similar expenses. I certainly was a consultant solicitor at Withers LLP (until the end of May 2015). But I was never part of, connected to or instructed by Ten Old Square on anything, and certainly not as a coroner (I was formerly the senior coroner for the City of London). Nor do I recollect ever having instructed any of them myself, though some of my colleagues at Withers did. I do not recall ever attending a seminar at Ten Old Square (though, since I have attended many barristers' seminars in my time, I accept that I may have done). I do not think I have ever attended a breakfast at any barristers' chambers (and I do not know what "Copf" is). I do know some of the barristers at Ten Old Square, both socially and professionally (though not, until I became a master, Mr Roseman). Others at Withers LLP will have known them too. But the same is true of many barristers' chambers in London. In any event there is no professional objection to members of a set of chambers appearing before a judge who has some kind of relationship (even a close family one) with a different member of those chambers.
4. Master Bragge did not in fact give final judgment in favour of the defendant on the s 50 application of the claimants. He declined to order the removal of the defendant only on the basis that she would then do certain things that up until then she had failed to do. And he said that if she continued to fail in these respects he would remove her. He ordered that the claimants have their costs out of the estate. But even if the defendant were right in her characterisation of the decision of Master Bragge, it would not demonstrate bias or apparent bias on my part that I made a decision, or a series of decisions, adverse to the defendant.
"Thank you for your communication.
I object to a bias and impartial judge hearing my case.
I do not wish to be stressed out by claimants and Master Matthews by continually cancelling all Interim Hearings in front of fair and just Judges.
Hearing cancelled 26th August 2015 in front of Master Marsh
Hearing Cancelled 17th August 2016 in front of Master Clark
Again, threatening to cancel hearing in front of other Master.
I have already appealed against Master Matthews previous order and Appeal Court will be considering his on their return in October 2016 as conveyed to me.
By continually cancelling hearings from other judges, Master Matthews and Claimants have proved with the evidence of bias and also raised impression of bias repeatedly.
I OBJECT TO MASTER MATTHEWS HEARING MY MOTHER'S CASE AND HEREBY FORMALLY REQUEST THAT HE RECUSES HIMSELF FROM THIS CASE.
With kind regards
The recusal application
Evidence in the application notice
"GP HAS SIGNED OFF SINCE MAY 2016.
1 It is only since Master Matthews has been involved in this case for only a year that he has managed to cause maximum damage to Mrs Sandhu's health. First put on Antidepressants in March 2016, then on Health Assessment and finally on one to two weekly meetings by the GP to safeguard patient's mental health. Defendant has been forced to endure case hearings whilst on Medication, Mental Health treatment, loss of job and without any recourse to legal advice or financial assistance. ATTACHED EXHIBIT MD1 - MEDICATION
2 Master Bragge was never oppressive & never gave rise to bias & unfair treatment. Master Matthews has shown complete Animosity towards defendant in his hearings and in his manner towards me
3 Master Matthews was informally asked to pass this case to another judge but he has Refused to do so and that the decision should be put on record
4 I do not [illegible] and object to being harassed and victimised & forced into hearing by Master Matthews and that the Judgment by this Judge detrimental and most prejudicial to defendant.
5 A reasonable man having knowledge of all relevant circumstances might well apprehend that the defendant will not receive fair & impartial hearing & Master Matthews has already caused mental abuse on defendant forced medication & Mental Health issues."
The witness statement
1. She says the judgment of Master Bragge was in the defendant's favour, as the claimants failed in their application to remove her as administratrix.
2. The claimants' lawyers are conducting the proceedings in their own personal financial interest.
3. The claim could have been settled by mediation.
4. Master Bragge found that the claimants were acting out of personal hostility to the defendant.
5. The claimants are acting against the estate of their late mother, Mrs D K Gill.
6. She says that I do not know the case.
7. She says that I have a closed mind, and have predetermined the case and so stated at hearings.
8. The defendant says that she has been forced into mental health treatment by the court.
9. After Master Bragge's retirement, the matter was placed forcefully in my hands by the claimants.
10. Hearings in the case have been cancelled by me.
11. She says that I know that the money claimed in July 2015 (in the charging order application) has never been owed.
12. She says that the claimants' solicitors failed to post "an important letter" (I assume this to be the request under CPR Part 18 of 28 January 2016).
13. Her application by notice dated 19 August 2015 (to set aside the interim charging order) has never been heard. Indeed, she claims that she has been denied hearings for matters that were important to her.
14. She says that the claimants are receiving preferential treatment, in that their without notice applications are always granted. She also says that the hearing on 26 October 2016 "will be cancelled and placed in front of biased judge, brought forward for 5 October 2016".
15. She says that she has been denied a transfer of her case (to Staines) through the application due to be heard on 25 August 2016.
16. I have failed to remain impartial, including "by continually allowing FALSE claim to even exist", making an interim charging order without any evidence, and ridiculing the defendant during hearings.
17. I have ignored her skeleton arguments and oral submissions.
18. The claimants' costs are over £100,000 in a small estate of £200,000.
1. The judgment of Master Bragge did indeed record that the defendant had been successful on behalf of the estate as against third parties, but was against the defendant on the question whether she should be removed. His opinion was that on balance the interests of the parties would be best served by removal, but that he would not make the order so long as the defendant provided a further account with supporting documentation, and sent a further cheque to the first claimant. The subsequent problems have all arisen from the further account and documentation.
2. There is no evidence to support this allegation, but even if there were it would relate to conduct by the claimants' solicitors, rather than to mine.
3. From what I have seen of the parties, and the atmosphere of mistrust and suspicion between them, I cannot agree.
4. This allegation is not borne out by the draft judgment of Master Bragge which was in evidence. In para 12 he refers to an allegation by the defendant that the claimant's solicitors were looking for something to "pin on her". But that is an allegation by the defendant, and one which Master Bragge did not accept. In para 20, Master Bragge certainly said there was a poor relationship between the parties which was adversely affecting the administration of the estate. However, that is a long way from what is alleged.
5. There is no evidence to support this allegation, but even if there were it would relate to the claimants' conduct and not to mine.
6. Master Bragge had the management of this case from the beginning. After Master Bragge retired, as I have said, the cases formerly allocated to him were allocated to me. Subject to one point, I was not party to what happened in this case before July 2015 (when I was appointed, and made the first interim charging order on the papers). The one point is that the defendant says that I dealt with the case on one occasion as a deputy master. That is possible, though I have no recollection of the occasion. However, in relation to all the dealings that I have had with this case since, I have prepared for them in exactly the same way as I have prepared every other case. It has never before been suggested that I did not know a case, or that if I did not that could somehow be a basis for an imputation of bias or the appearance of bias. I have never before been subject to such an allegation.
7. I have done my best to bring an open mind to every piece of correspondence, written submission or hearing, without ever pre-determining any application. I have always sought to ascertain the comments or submissions of both sides before reaching any inter partes decision. I have never said, at a hearing or otherwise, that I had already made a decision before hearing the parties.
8. I accept that the defendant has received treatment for depression and been signed off from work as a result. There is however no medical evidence that I have seen as to what has caused it.
9. As I have explained, on Master Bragge's retirement, I inherited all his extant cases to manage. The claimants had no say in the matter.
10. I have indeed cancelled hearings from time to time, as part of active case management, and always for reasons given. For example, I cancelled a hearing on 17 December 2015 because of the claimant's ill-health (para 10 above). I cancelled the hearing fixed by court staff for Friday 5 August 2016 because that was a time for doing box-work and an inexperienced member of staff had fixed it in error (see para 16). I cancelled the hearing of 17 August 2016 because it was placed in the masters' urgent applications list (before a different master) when there was no sufficient urgency and in any event for too short a time (para 17). I cancelled the hearing of 25 August 2016 because it was listed for only 15 minutes but would plainly take much longer (para 18). I consulted the parties before fixing a date to hear them together, ie 5 October 2016, in a sufficient time-slot.
11. I knew that money was owed by the defendant to the claimants under costs orders dating back to 2013 (see para 13). I was told in the claimants' application for an interim charging order that some £15,995.69 was outstanding. I had no reason not to believe that statement, which was supported by a statement of truth. The other conditions for the making of an interim charging order were satisfied. I therefore had no reason not to make the order, and I made it. Whether the debt in fact is or is not due is something to be considered on the return date, when the judgment debtor is heard, not when dealing with the matter on the papers at the interim stage.
12. Assuming that the "important letter" was the request under CPR Part 18 of 28 January 2016, I dealt with this expressly at the hearing on 10 March 2016, when I held that the claimants did in fact post it to the defendant.
13. As appears above, the defendant's application by notice dated 19 August 2015 was originally listed (by the Chief Master) to be heard on 30 September 2015 by me. I gave directions for evidence and the resolution of that application. The application was listed for hearing on 17 December 2015. But it was adjourned on the defendant's application, she being unwell, and with the parties' consent was adjourned to 10 March 2016, to be heard with other applications. Unfortunately, the hearing of the Part 18 request application took up the whole time available and it was not reached. There were further hearings on 17 May and 12 July, but once again the other matters to be heard prevented the hearing of the application of 19 August 2015. The defendant then issued a further application notice (dated 28 July) on 29 July 2016 for the same relief. This was first listed in error on 5 August and then on 17 August before a different master in the urgent applications list. In the exercise of my case management functions I vacated these hearings (as set out above) and relisted them for 5 October 2016. But on that day (as also set out above) the defendant informed me that she had issued an application for an order that I recuse myself, and the applications were adjourned once again.
14. The only without notice applications of the claimants that have been granted are the applications for interim charging orders. But where the application is duly made and the information required by the rules is supplied, supported by a statement of truth, it is highly probably that such an application will be granted. The hearing on 26 October 2016 before Deputy Master Rhys was vacated by him. His note however does not give the reason for taking that step and I do not know what it was. So far as I can find out, it has not so far been relisted.
15. The transfer application was due to be heard (by adjournment) on 5 October 2016, but as mentioned above the defendant told me at that hearing that she had issued an application for a recusal order, and in the event the hearing on that day was adjourned pending resolution of the recusal question.
16. I do not see how a lack of impartiality is shown by allowing a party to put forward its case (which is what I have allowed the claimants to do). I have already made clear that if the application for an interim charging order is duly made and the information required by the rules is supplied, it is highly probable that it will be granted. Self-evidently, the application is without notice, on one side only, and it is at the stage of further consideration that the other party will be able to adduce her side of the story. I have never ridiculed the defendant during any hearing, or, indeed, at any other time.
17. I have not ignored the defendant's skeleton arguments or submissions. On the contrary, I have always taken account of them. It is correct that usually I have not been persuaded by them, but that is a different matter.
18. I do not know if this is true, but even if it were it would not be relevant to any question of bias or the appearance of bias on my part.
The skeleton argument
"ignored each and every details, letter, email, verbal explanation in hearing, details of full payments, being three payments evidenced with payment details, bank account numbers and confirmed with posting proof. Yet Master Matthews continues to entertain claimants with their alleged claim without any evidence without any truth in their claim. This claim should have been DISMISSED long time ago."
She goes on to blame the claimants' solicitor for making a false witness statement "that the estate owes further costs of £15995.69". It seems that this really is the nub of the present dispute. The defendant is upset that the court made an interim charging order when, on her case, the debt was not due.
At the hearing
"I attach scanned letter dated 25/10/16 post mark, which was posted to me for the hearing on 26th October 2016. I received this after I returned from Court on 26th October 2016 and having been informed by court usher and court administration office that the hearing scheduled for 26th October 2016 at 2.30pm in front of Master Rhys was cancelled"
On the judicial note which the Deputy Master completed, dated 26 October, he has written "N/A" (for "no attendance") against both the claimants' and the defendant's names. Whatever the significance of that, and however annoying it must have been for the defendant to go to court to find that no hearing was taking place, I was not involved in any of it.
The claimants' position
"that justice should not only be done, but also must be manifestly and undoubtedly be seen to be done": R v Sussex Justices, ex p McCarthy  1 KB 256, 258.
The two rules overlap. It is obvious that, if a person judges his or her own cause, justice will not be done, or at any rate will not be seen to be done. Where a judge has a pecuniary or other significant personal interest in the outcome of the case, such as the promotion of a cause, the judge is automatically disqualified: R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2)  1 AC 119, HL. It does not matter whether the judge knew or not of the interest.
"Bias is an attitude of mind that prevents the judge from making an objective determination of the issues that he [or she] has to resolve": Re Medicaments and Related Classes of Goods (No 2)  ICR 564, .
The law distinguishes actual bias from apparent bias. The former is subjective, and deals with the judge's state of mind, while the latter is objective, and deals with the judge's conduct and the surrounding circumstances. Where a judge is actually biased in a decision, then justice has not been done. Where a decision is tainted by apparent bias, then justice is not seen to be done. Cases holding that there has been actual bias employed by a judge are rare. Most cases dealing with bias are argued and decided on the basis of apparent bias.
" … 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."
It should also be noted that the mere fact that a judge has been guilty of shocking, even deplorable behaviour, is not enough: Harb v HRH Prince Abdul Aziz bin Fahd bin Abdul Aziz  EWCA Civ 556, .
" … We would however, emphasise two important points. First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The 'real possibility' test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias… [T]he litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business. Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded.
[ … ]
 Secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances, and it is for the court to make an assessment of these… It was held in Virdi v Law Society  EWCA Civ 100 that the hypothetical fair-minded observer is to be treated as if in possession of all the relevant facts and not only those that are publicly available…"
"But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant -- whether it be a represented litigant or a litigant in person -- criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised -- whether that criticism was justified or not": Dobbs v Tridos Bank NV  EWCA 468; see also Re JRL, ex parte CJL (1986) 161 CLR 342, 352, per Mason J.
So the judge asked to recuse him or herself should only do so where the case is properly made out. Another way of putting this point is that the rule is a rule of law, and confers no discretion on the judge. If the case crosses the line, the judge must not hear the case. If it does not do so, the judge cannot decline to do so.
Application of the law to the facts
"Master Matthews has blatantly clearly taken side of claimant, causing anxiety stress and harm" (top of p 5, (dd));
"Master Matthews is making sure that no other judge ever finds out about the false claim of Paul Prentice solicitor of claimants…" (p5, (hh));
"Tribunal is biased and siding with claimants therefore Master Matthews must recuse himself and allow a partial [sic] and just judge" (top of p 6).
Document attached to the letter of 23 August 2016
Allegations in the defendant's witness statement
Allegation in the skeleton argument