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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Breeze Benton Solicitors (A Partnership) v Weddell  UKEAT 0873_03_1805 (18 May 2004)
Cite as:  UKEAT 0873_03_1805
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|At the Tribunal|
THE HONOURABLE MRS JUSTICE COX
Transcript of Proceedings
|For the Appellant||MR SIMON DEVONSHIRE
Messrs Breeze Benton Solicitors
Fleur de Lys House
94 Bow Road
London E3 3AB
|For the Respondent||MR MARK MULLINS
Messrs Walter Jennings & Son Solicitors
259/263 Kentish Town Road
London NW5 2JT
Practice and Procedure
Appeal based on refusal of ET Chairman to recuse himself following previous proceedings involving the same Respondent and his complaint to the LCD concerning the Chairman's conduct. Appeal allowed. Case to be reheard by different ET.
THE HONOURABLE MRS JUSTICE COX
"…can perhaps 'be expected to be aware of the legal traditions and culture of this jurisdiction' as was said in Taylor v Lawrence  QB 528, per Lord Woolf CJ … at paragraphs 61-64. But he may well not be wholly uncritical of this culture … he would be 'neither complacent nor unduly sensitive or suspicious' …"
"Mr Reilly then revealed at 12.50pm that he had something else to do in the afternoon and would not be appearing before the Tribunal when the case was called on. After expressing some surprise in the light of the applications he had just been making the Chairman enquired of Mr Reilly what he proposed to do. Mr Reilly stated that "someone would appear" and deal with the matter whilst he, in the meantime, would contact his accounts department in an attempt to agree the figures concerning the salary complaint with the Applicants."
It is not in dispute that Mr Reilly would probably have explained his absence to the Tribunal in this way.
"30. The Applicants submit that Mr Reilly has effectively been extending the process of litigation in order to defer the inevitable, namely that he had to pay the wages that his staff had earned. Mr Reilly had never taken the point concerning incorrect service or the incorrect description of the Respondent party. This he has raised in an opportunistic way in order to criticise the Applicants before the Tribunal today. The position is that it is not until the case is actually started that any final indication is given that a small proportion of the claim actually in dispute. In the meantime the Applicants have suffered considerable financial stress and embarrassment as is clear from the testimony they have given before the Tribunal. Furthermore, the Applicants submit that the Tribunal has only got to cast its mind back over the events that unfolded before it between 12.22 pm and 2.08 pm this afternoon to gain an accurate impression of what they have been up against. The Applicants submit that the Tribunal could not have had a better view of the type of Respondent that it is dealing with and the way in which Mr Reilly on behalf of the partnership cares to conduct its legal and business affairs.
31. The Tribunal is unanimously of the view that it agrees entirely with the submissions made by both of the Applicants. They are young solicitors attempting to make their way in the world who, no doubt, work hard in a difficult area of the law and are perfectly entitled to be paid their wages. The Tribunal is in no doubt whatsoever that the conduct of Mr Reilly, given that he is a senior figure in a firm of solicitors, has been vexatious and unreasonable. Therefore the provisions of Rule of Procedure 12 are completely fulfilled and the Tribunal makes the following costs order against the partnership of M J Reilly and J M B Perrigo trading as Breeze Benton Solicitors."
"We would wish copies of any contemporaneous records prior to compiling our own contemporaneous notes as to what we consider to be his prejudice, rude and bombastic behaviour towards the Respondents and witnesses throughout the hearing."
"In proceedings taken by employees against this company and where the Writer appeared in person in the proceedings he showed prejudice, bias both towards the Writer and a witness called on our behalf Miss Zoe Camenzuli. In terms he commented whilst I was an advocate representing the Firm:
1. I am surprised this Firm is still in business;
2. Is this claim being defended because the company is bust;
3. He demanded I sat down when I attempted [to] remonstrate in respect of 1 and 2 above;
4. He said he found the behaviour of the Firm and my own behaviour difficult to understand;
All of this was whilst the claim was still pending and was regarded by the parties as being an independent assessor of the claim the Writer noted the embarrassment of his colleagues but the Chairman seemed bombastic and rude and determine[d] to ignore them.
In the afternoon the Writer was too embarrassed to attend and instead instructed Counsel, however, our Accounts Assistant who gave evidence and who had never been in a Court before reported back in an extremely distressed state that the Chairman had been aggressive and rude to her constantly interrupting her and questioning her figures but "as nice as pie" to the other side and as she definitely considered he displayed bias against the Respondent and favoured the other side which was the impression gained by me in the morning when I considered these interventions unprofessional and lacking in dignity in the holder of a judicial office and therefore we would very much wish these matters investigated on this Firm's behalf.
We look forward to hearing from you."
"At our discussion immediately prior to the start of the hearing, Mr Pritchard-Witt made it known to Mrs Wilsher and myself that Mr Reilly, on behalf of Breeze Benton, would most likely request a replacement chairman. He told us that he had discussed it with the Regional Chairman - Mr I Lamb - and the outcome had been that a replacement chairman to cover a scheduled 9 day case could not be found for a tribunal to begin that day. Further, that Listings had been consulted and could not find a slot for such a multi-day case until well into 2003…"
We consider this to indicate that before the parties were called into the Tribunal and before any intimation had been given of a recusal application, that the Chairman himself anticipated that Mr Reilly would object to his involvement in the case.
(a) The contested matter that the former Tribunal had to decide was resolved in favour of Mr Reilly and Miss Camenzeuli was held to have provided accurate evidence in the case (para. 12).
(b) The award of costs to the Applicants related to "relatively modest amounts of money" (para. 13).
(c) Mr Reilly had done nothing to pursue his complaint to the Lord Chancellor's Department (para. 14).
(d) The matter had not been raised at an earlier interlocutory stage so that the allocation of the case might "avoid the appointment of this Chairman" (paras. 14 and 15).
(e) The matter was raised for the first time on the first morning of the hearing.
(f) The Chairman was not sitting alone on the previous occasion but was a member of a Tribunal constituted by three individuals and it was open to the two members on this occasion to dissent from the Chairman's view which was a "reasonable safeguard".
"After detailed arguments from both parties the Tribunal deliberated at length the interests of Ms Weddell [the Applicant] in getting a speedy hearing of her complaint against the possibility of Mr Reilly receiving an unfair hearing. Ms Wilsher and I questioned Mr Pritchard-Witts as to the previous appearance of Mr Reilly before him. He assured us that it in no way pre-disposed him in any way as to the merits of the case we were to hear. With this in mind the decision was reached that by adjourning the case until 2003 would have on balance a more detrimental effect on Ms Weddell than on Mr Reilly."
"It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided…"
In giving examples of some of the many factors which might arise for consideration, they stated a little later on that:
"…a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v. Kelly (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, 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. We repeat: every application must be decided on the facts and circumstances of the individual case. 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."
At paragraph 19 of the judgment the Court of Appeal stated:
"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 possibility of doubt and the likelihood of public scepticism. All will turn on the facts of the 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."
"21. The principle to be applied is that stated in Porter v Magill, namely whether a fair minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased? The observer is likely to approach the matter on the basis that the lay members look to the judge for guidance on the law, and can be expected to develop a fairly close relationship of trust and confidence with the judge. The observer may also be credited with knowledge that a Recorder, who in a criminal case has sat with jurors, may not subsequently appear as counsel in a case in which one or more of those jurors serve. Despite the differences between the two cases, the observer is likely to attach some relevance to the analogy because in both cases the judge gives guidance on the law to lay men. But the observer is likely to regard the practice forbidding part-time judges in the Employment Tribunal from appearing as counsel before an Employment Tribunal which includes lay members with whom they had previously sat as very much in point. The Editor of the Industrial Relations Law Reports has argued "that a rule to the same effect is even more necessary in the EAT":  IRLR 225. In favour of this view there is the fact that the EAT hears only appeals on questions of law while in the Employment Tribunal the preponderance of disputes involve matters of fact. The observer would not necessarily take this view. But he is likely to take the view that the same principle ought also to apply to the EAT.
22. In the EAT Lindsay J was alive to the possibly that "some . . . practices will fall prey to increasing sensitivity" (para 33(10)). What the public was content to accept many years ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago. The informed observer of today can perhaps "be expected to be aware of the legal traditions and culture of this jurisdiction" as was said in Taylor and Another v Lawrence and Another  QB 528, per Lord Woolf CJ, at pp 548-549, at paras 61-64. But he may not be wholly uncritical of this culture. It is more likely that in the words of Kirby J in Johnson v. Johnson (2000) 200 CLR 488, 509, para 53, he would be "neither complacent nor unduly sensitive or suspicious": compare also  IRLR 225 (second col.)."
"That is the test which the Employment Tribunal were required to apply when deciding whether the Chairman should recuse himself. Before the Employment Appeal Tribunal, it was necessary first to test the Employment Tribunal's decision as to recusal in that way but also to consider the proceedings before the Employment Tribunal as a whole and decide whether a perception of bias had arisen."
"20. … I do not consider the first of the reasons stated by the Employment Tribunal as to why the Chairman need not stand down, that the Chairman "was only one of three members of Tribunal all with equal vote," to be as a good one. Particularly as the legally qualified and presiding member of a Tribunal of three, his position was an important one and any apparent bias on his part is not nullified by the presence of two lay members who might outvote him. In present circumstances, if grounds are found to be present which would lead the appropriate observer to conclude that there was a real possibility that the Chairman was biased, it could not properly be held that the requirement of a fair hearing was satisfied by the presence of the lay members. Whether reliance on that reason by the Tribunal in itself affects the overall position will be for the Employment Appeal Tribunal to consider.
21. Detailed guidance is given in Locabail (UK) Ltd v Bayfield Properties Limited & Anr  IRLR 96, mentioned by the judge in his ruling, as to how the question should be approached. In the present context, I would specifically draw attention to the statement of this court, presided over by the Lord Chief Justice, at paragraph 25:
"The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party of witness to be unreliable, would not without more found a sustainable objection".
I consider that principle to be an important one in the administration of justice and one which applies with at least as much force to previous adverse comments upon a representative as upon a party or witness. A party cannot normally expect a judge to recuse himself because the judge has previously made adverse comments about him, in the course of a case or cases, though the circumstances of each situation will need specific consideration. Neither can parties assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be and, it is claimed in this case, is shown. As to the relevance of the result of cases in this context, it must be borne in mind that it is at least possible that a litigant or representative who has behaved unreasonably, or worse, in one case will do so in a later case in which he or she appears."
(1) that the test properly applied requires the Tribunal to recuse itself if there is a real possibility of bias. If such a risk is found the Tribunal is not entitled to balance against that risk considerations of prejudice to the other party resulting from delay;
(2) that if in any case there is a real ground for doubt, that doubt should be resolved in favour of recusal;
(3) that it is no answer to a recusal application to say that the Chairman was only one of three members with an equal vote, given the important position of the legally qualified and presiding member of a Tribunal of three members; and
(4) unless he admits to the possibility of bias, the claim of the person asked to recuse himself that he will not be or is not partial is of no weight because of "the insidious nature" of bias.
(a) There was no suggestion and no finding by the Tribunal that Mr Reilly's application subsequently for the Chairman to recuse himself was a tactical ploy on his part. On the contrary, the Tribunal accepted for the purposes of the application that Mr Reilly's fear was genuinely held;
(b) Mr Reilly's claims were to some extent corroborated by the complaint he had made subsequently to the Lord Chancellor's Department and, indirectly, to the Regional Chairman. We note that the Chairman himself has made no reference to the remarks in his statement responding to Mr Reilly's affidavit.
(c) Due to the insidious nature of bias, little weight could be attached by the Tribunal members to the Chairman's non-acceptance of Mr Reilly's allegations and to his statement that he was not and would not be partial.
(d) The mere fact that the Chairman felt it necessary to state expressly at paragraph 19 of the reasons that he rejected Mr Reilly's allegations indicated the level of the dispute between the Chairman and Mr Reilly and rendered it inappropriate, in our judgment, that he should sit on the case.
"Any matters concerning the previous litigation which do not appear to be relevant to the current issues before it will be excluded from the evidence in any event."
(a) the fact that he raised with his lay members on the morning of the hearing before the parties came into the Tribunal the fact that Mr Reilly would most likely apply for the case to be heard by a different Chairman; and
(b) the fact that he raised with the Regional Chairman also before the hearing began the possibility of a replacement Chairman or an alternative listing for the case.