B e f o r e :
LORD CHIEF JUSTICE
MASTER OF THE
ROLLS
and
VICE-CHANCELLOR
____________________
|
PTA1999/6041/A3 LOCABAIL (UK)
LTD
|
Plaintiff
|
|
- v -
|
|
|
BAYFIELD PROPERTIES LTD BARBARA HAGAN
EMMANUEL
|
Defendants
|
|
And
|
|
|
PTA1999/6042/A3 LOCABAIL (UK)
LTD LOCABAIL INTERNATIONAL FINANCE LTD
|
Plaintiffs
|
|
- v -
|
|
|
WALDORF INVESTMENT CORPORATION ARES
DIMITROS EMMANUEL BARBARA HAGAN EMMANUEL
|
Defendants
|
|
And
|
|
|
PTA1999/6578/B2 MARGARET
TIMMINS
|
Claimant
|
|
- v -
|
|
|
TIMOTHY GORMLEY
|
Defendant
|
|
And
|
|
|
PTA1999/6639/A1 MRS D
WILLIAMS
|
Applicant
|
|
- v -
|
|
|
HM INSPECTOR OF TAXES
|
Respondent
|
|
And
|
|
|
PTA1999/6093/C R.
|
|
|
- v -
|
|
|
BRISTOL BETTING AND GAMING LICENSING
COMMITTEE, EX PARTE O'CALLAGHAN
|
Respondent
Applicant
|
____________________
(Transcript of the Handed Down Judgement of
Smith
Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171
421 4040 Fax No 0171 831 8838
Official Shorthand Writers to the Court)
____________________
1. Mr Anthony Mann QC and Mr James Barker (instructed by Messrs More
Fisher Brown, London E1 6DA, for the Plaintiff)
Ms Hazel Williamson QC
(instructed by Messrs Stephenson Harwood, London EC4M 8SH, for the Second
Defendant)
2. Mr Anthony Mann QC and Mr James Barker (instructed by Messrs
More Fisher Brown, London E1 6DA, for the Plaintiffs)
Ms Hazel Williamson QC
(instructed by Messrs Stephenson Harwood, London EC4M 8SH, for the Third
Defendant)
3. Mr Andrew Edis QC and Mr Ivan Woolfenden (instructed by Messrs
Bartlett & Son, Liverpool L2 9QN for the Claimant)
Mr Robert Jay QC
(instructed by Messrs Morgan Cole, Cardiff CF10 3DP for the Defendant
4. Mrs
Williams appeared in Person
Miss Tess Gill (instructed by the Solicitor for
the Inland Revenue, London WC2 2SG)
5. Miss Judith Jackson QC (instructed by
Messrs Dolmans, Cardiff CF10 3DS for the Applicant)
Mr William Norris QC and
Miss Lucy Moorman (instructed by Messrs Richards Butler, London EC3A 7EE for the
interested party)
Mr David Lloyd Jones QC (instructed by the Treasury
Solicitor, London, as Amicus Curiae)
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
Wednesday, 17 November 1999
LORD CHIEF JUSTICE, MASTER OF THE ROLLS, VICE-CHANCELLOR:
- This is the judgment of the court on five
applications for permission to appeal. The applications have been listed and
heard together since they raise common questions concerning disqualification
of judges on grounds of bias. At the outset we acknowledge with gratitude the
help we have received from Mr David Lloyd Jones QC who has made submissions on
the law as an amicus.
- In determination of their rights and liabilities,
civil or criminal, everyone is entitled to a fair hearing by an impartial
tribunal. That right, guaranteed by the European Convention on Human Rights,
is properly described as fundamental. The reason is obvious. All legal
arbiters are bound to apply the law as they understand it to the facts of
individual cases as they find them. They must do so without fear or favour,
affection or ill-will, that is, without partiality or prejudice. Justice is
portrayed as blind not because she ignores the facts and circumstances of
individual cases but because she shuts her eyes to all considerations
extraneous to the particular case.
- Any judge (for convenience, we shall in this
judgment use the term "judge" to embrace every judicial decision-maker,
whether judge, lay justice or juror) who allows any judicial decision to be
influenced by partiality or prejudice deprives the litigant of the important
right to which we have referred and violates one of the most fundamental
principles underlying the administration of justice. Where in any particular
case the existence of such partiality or prejudice is actually shown, the
litigant has irresistible grounds for objecting to the trial of the case by
that judge (if the objection is made before the hearing) or for applying to
set aside any judgment given. Such objections and applications based on what,
in the case law, is called "actual bias" are very rare, partly (as we trust)
because the existence of actual bias is very rare, but partly for other
reasons also. The proof of actual bias is very difficult, because the law does
not countenance the questioning of a judge about extraneous influences
affecting his mind; and the policy of the common law is to protect litigants
who can discharge the lesser burden of showing a real danger of bias without
requiring them to show that such bias actually exists.
- There is, however, one situation in which, on proof
of the requisite facts, the existence of bias is effectively presumed, and in
such cases it gives rise to what has been called automatic disqualification.
That is where the judge is shown to have an interest in the outcome of the
case which he is to decide or has decided. The principle was briefly and
authoritatively stated by Lord Campbell in Dimes v. The Proprietors of the
Grand Junction Canal (1852) 3 HL Cas 759 at 793, when orders and decrees
made by and on behalf of the Lord Chancellor were set aside on the ground that
he had had at the relevant times a substantial shareholding in the respondent
company:
"No one can suppose that Lord Cottenham could be, in the
remotest degree, influenced by the interest that he had in this concern;
but, my Lords, it is of the last importance that the maxim that no man is to
be a judge in his own cause should be held sacred. And that is not to be
confined to a cause in which he is a party, but applies to a cause in which
he has an interest. Since I have had the honour to be Chief Justice of the
Court of Queen's Bench, we have again and again set aside proceedings in
inferior tribunals because an individual, who had an interest in a cause,
took a part in the decision. And it will have a most salutary influence on
these tribunals when it is known that this high Court of last resort, in a
case in which the Lord Chancellor of England had an interest, considered
that his decree was on that account a decree not according to law, and was
set aside. This will be a lesson to all inferior tribunals to take care not
only that in their decrees they are not influenced by their personal
interest, but to avoid the appearance of labouring under such an
influence."
- The rule has been expressed in slightly different
terms in different cases. In R. v. Rand (1866) LR 1 QB 230 at 232,
Blackburn J. said:
"There is no doubt that any direct pecuniary interest, however
small, in the subject of inquiry, does disqualify a person from acting as a
judge in the matter ..."
- In R. v. Camborne Justices, ex parte Pearce
[1955] 1 QB 41 Slade J., giving the judgment of the court, said at page 47:
"It is, of course, clear that any direct pecuniary or
proprietary interest in the subject-matter of a proceeding, however small,
operates as an automatic disqualification."
- The basic rule is not in doubt. Nor is the rationale
of the rule: that if a judge has a personal interest in the outcome of an
issue which he is to resolve, he is improperly acting as a judge in his own
cause; and that such a proceeding would, without more, undermine public
confidence in the integrity of the administration of justice (see Dimes
above, in the passage quoted, and R. v. Gough [1993] AC 646 at 661, per
Lord Goff of Chieveley).
- In the context of automatic disqualification the
question is not whether the judge has some link with a party involved in a
cause before the judge but whether the outcome of that cause could,
realistically, affect the judge's interest. In Dimes the outcome of the
litigation certainly could have had such an effect on the Lord Chancellor's
personal position. In Clenae Pty. Ltd. & Others v. Australia and New
Zealand Banking Group Ltd [1999] VSCA 35 (Supreme Court of Victoria) it
was held that the outcome of the litigation could not have had such an effect.
That will often be the case where the judge holds a relatively small number of
shares in a large company and the sums involved in the litigation are not such
as could, realistically, affect the value of the judge's shares or the
dividend he could expect to receive. The correct approach was in our judgment
taken by the majority in the Victoria Court of Appeal in the case cited where,
giving the main judgment after reviewing English and Australian authority,
Charles JA said (at paragraph 59 of the judgment):
"If there is a separate rule for automatic disqualification for
financial interest, unrelated to a reasonable apprehension of bias, in my
view the irrebuttable presumption of bias only arises (subject to questions
of waiver or necessity) where the judicial officer has a direct pecuniary
interest in the outcome of the proceeding."
- Winneke P. agreed (at paragraph 3 of the judgment):
"... I agree with Charles JA that authority which binds this
Court does not compel us to conclude that it is the mere shareholding by a
judicial officer ("judge") in a party which, alone, constitutes the
"disqualifying pecuniary interest", but rather it is the potential interest,
created by that shareholding, in the subject matter or outcome of the
litigation which is the disqualifying factor."
- While the older cases speak of disqualification if
the judge has an interest in the outcome of the proceedings "however small",
there has in more recent authorities been acceptance of a de minimis
exception: BTR Industries South Africa (Pty) Ltd v. Metal and Allied
Workers' Union 1992 (3) SA 673 at 694; R. v. Inner West London Coroner,
ex parte Dallaglio [1994] 4 All E.R. 139 at 162; Auckland Casino Ltd.
v. Casino Control Authority [1995] 1 NZLR 142 at 148. This seems to us a
proper exception provided the potential effect of any decision on the judge's
personal interest is so small as to be incapable of affecting his decision one
way or the other; but it is important, bearing in mind the rationale of the
rule, that any doubt should be resolved in favour of disqualification. In any
case where the judge's interest is said to derive from the interest of a
spouse, partner or other family member the link must be so close and direct as
to render the interest of that other person, for all practical purposes,
indistinguishable from an interest of the judge himself.
- Until recently the automatic disqualification rule
had been widely (if wrongly) thought to apply only in cases where the judge
had a pecuniary or proprietary interest in the outcome of the litigation. That
is what Dimes concerned, although the statement of principle quoted
above is not in terms so limited. In R. v. Bow Street Metropolitan
Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] 2 WLR 272,
the House of Lords made plain that the rule extended to a limited class of
non-financial interests. At page 283, Lord Browne-Wilkinson said:
"My Lords, in my judgment, although the cases have all dealt
with automatic disqualification on the grounds of pecuniary interest, there
is no good reason in principle for so limiting automatic disqualification.
The rationale of the whole rule is that a man cannot be a judge in his own
cause. In civil litigation the matters in issue will normally have an
economic impact; therefore a judge is automatically disqualified if he
stands to make a financial gain as a consequence of his own decision of the
case. But if, as in the present case, the matter at issue does not relate to
money or economic advantage but is concerned with the promotion of the
cause, the rationale disqualifying a judge applies just as much if the
judge's decision will lead to the promotion of a cause in which the judge is
involved together with one of the parties."
At page 284, Lord Browne-Wilkinson added:
"It is important not to overstate what is being decided. It was
suggested in argument that a decision setting aside the order of 25 November
1998 would lead to a position where judges would be unable to sit on cases
involving charities in whose work they are involved. It is suggested that,
because of such involvement, a judge would be disqualified. That is not
correct. The facts of this present case are exceptional. The critical
elements are (1) that A.I. was a party to the appeal; (2) that A.I. was
joined in order to argue for a particular result; (3) the judge was a
director of a charity closely allied to A.I. and sharing, in this respect,
A.I.'s objects. Only in cases where a judge is taking an active role as
trustee or director of a charity which is closely allied to and acting with
a party to the litigation should a judge normally be concerned either to
recuse himself or disclose the position to the parties. However, there may
well be other exceptional cases in which the judge would be well advised to
disclose a possible interest."
- The other members of the House agreed that the
rule should be extended to the extent indicated, and Lord Hutton (at page 293)
observed that:
" … there could be cases where the interest of the judge in the
subject matter of the proceedings arising from his strong commitment to some
cause or belief or his association with a person or body involved in the
proceedings could shake public confidence in the administration of justice
as much as a shareholding (which might be small) in a public company
involved in the litigation."
- In R. v. Gough, above, Lord Woolf suggested
(at page 673) that the courts should hesitate long before creating any other
special category of automatic disqualification:
"since this will immediately create uncertainty as to what are
the parameters of that category and what is the test to be applied in the
case of that category."
- With that expression of view Lord Goff, it would
seem, agreed (at page 664), and it has earned support in the High Court of
Australia: see Webb v. R. (1994) 181 CLR 41 at page 75, per Deane J. In
Pinochet (No. 2), at page 287 Lord Goff did not envisage any wider
extension. Since any extension of the automatic disqualification rule would
also, inevitably, limit the power of the judge and any reviewing court to take
account of the facts and circumstances of a particular case, and would have
the potential to cause delay and greatly increased cost in the final disposal
of the proceedings, we would regard as undesirable any application of the
present rule on automatic disqualification beyond the bounds set by existing
authority, unless such extension were plainly required to give effect to the
important underlying principles upon which the rule is based.
- Although disqualification under the rule in
Dimes and Pinochet (No 2) is properly described as automatic, a
party with an irresistible right to object to a judge hearing or continuing to
hear a case may, as in other cases to which we refer below, waive his right to
object. It is however clear that any waiver must be clear and unequivocal, and
made with full knowledge of all the facts relevant to the decision whether to
waive or not.
- In practice, the most effective guarantee of the
fundamental right recognised at the outset of this judgment is afforded not
(for reasons already given) by the rules which provide for disqualification on
grounds of actual bias, nor by those which provide for automatic
disqualification, because automatic disqualification on grounds of personal
interest is extremely rare and judges routinely take care to disqualify
themselves, in advance of any hearing, in any case where a personal interest
could be thought to arise. The most effective protection of the right is in
practice afforded by a rule which provides for the disqualification of a
judge, and the setting aside of a decision, if on examination of all the
relevant circumstances the court concludes that there was a real danger (or
possibility) of bias. Until 1993 there had been some divergence in the English
authorities. Some had expressed the test in terms of a reasonable suspicion or
apprehension of bias: see, for example, Law v. Chartered Institute of
Patent Agents [1919] 2 Ch. 276 at 290; R. v. Sussex Justices, ex parte
McCarthy [1924] 1 KB 256 at 259; Metropolitan Properties Co. (FGC) Ltd.
v. Lannon [1969] 1 QB 577 at 599, 602, 606; R. v. Liverpool City
Justices, ex parte Topping [1983] 1 WLR 119 at 123; R. v. Mulvihill
[1990] 1 WLR 438 at 444. This test had found favour in Scotland (Bradford
v. McLeod 1986 SLT 244), Australia (R. v. Watson, ex parte
Armstrong (1976) 136 CLR 248) and South Africa (BTR Industries,
above). Other cases had expressed the test in terms of a real danger or
likelihood of bias: R. v. Rand (1866) LR 1 QB 230 at 233; R. v.
Sunderland Justices [1901] 2 KB 357 at 371; R. v. Camborne Justices, ex
parte Pearce [1955] 1 QB 41 at 51; R. v. Barnsley Licensing Justices,
ex parte Barnsley and District Licensed Victuallers' Association [1960] 2
QB 167 at 186; R. v. Spencer [1987] AC 128. Whatever the merits of
these competing tests, the law was settled in England and Wales by the House
of Lords' decision in R. v. Gough, above. The gist of that decision is
to be found in two brief extracts from the leading speech of Lord Goff. The
first is at page 668 where he said:
"In my opinion, if, in the circumstances of the case (as
ascertained by the court), it appears that there was a real likelihood, in
the sense of a real possibility, of bias on the part of a justice or other
member of an inferior tribunal, justice requires that the decision should
not be allowed to stand. I am by no means persuaded that, in its original
form, the real likelihood test required that any more rigorous criterion
should be applied. Furthermore the test as so stated gives sufficient
effect, in cases of apparent bias, to the principle that justice must
manifestly be seen to be done, and it is unnecessary, in my opinion, to have
recourse to a test based on mere suspicion, or even reasonable suspicion,
for that purpose."
The second passage is at page 670:
"In conclusion, I wish to express my understanding of the law as
follows. I think it possible, and desirable, that the same test should be
applicable in all cases of apparent bias, whether concerned with justices or
members of other inferior tribunals, or with jurors, or with arbitrators.
Likewise I consider that, in cases concerned with jurors, the same test
should be applied by a judge to whose attention the possibility of bias on
the part of a juror has been drawn in the course of a trial, and by the
Court of Appeal when it considers such a question on appeal. Furthermore I
think it unnecessary, in formulating the appropriate test, to require that
the court should look at the matter through the eyes of a reasonable man,
because the court in cases such as these personifies the reasonable man; and
in any event the court has first to ascertain the relevant circumstances
from the available evidence, knowledge of which would not necessarily be
available to an observer in court at the relevant time. Finally, for the
avoidance of doubt, I prefer to state the test in terms of real danger
rather than real likelihood, to ensure that the court is thinking in terms
of possibility rather than probability of bias. Accordingly, having
ascertained the relevant circumstances, the court should ask itself whether,
having regard to those circumstances, there was a real danger of bias on the
part of the relevant member of the tribunal in question, in the sense that
he might unfairly regard (or have unfairly regarded) with favour, or
disfavour, the case of a party to the issue under consideration by him
..."
- This rule has been applied in a number of English
cases and Privy Council appeals. It has not commanded universal approval
elsewhere: Scotland (Doherty v. McGlennan 1997 SLT 444), Australia
(Webb v. R., above) and South Africa (Moch v. Nedtravel (Pty)
Ltd. 1996 (3) SA 1) have adhered to the reasonable suspicion or reasonable
apprehension test, which may be more closely in harmony with the jurisprudence
of the European Court of Human Rights (see, for example, Piersack v.
Belgium (1982) 5 EHRR 169; De Cubber v. Belgium (1984) 7 EHRR 236;
Hauschildt v. Denmark (1989) 12 EHRR 266; Langborger v. Sweden
(1989) 12 EHRR 416). We need not debate whether the substance of the two tests
is different, as suggested in Webb v. R., above. Nor need we consider
whether application of the two tests would necessarily lead to the same
outcome in all cases. For whatever the merit of the reasonable suspicion or
apprehension test, the test of real danger or possibility has been laid down
by the House of Lords and is binding on every subordinate court in England and
Wales. This test appears to be reflected in section 24 of the Arbitration Act
1996 (see Laker Airways Inc. v. FLS Aerospace Limited [1999] 2 Lloyd's
Rep. 45). In the overwhelming majority of cases we judge that application of
the two tests would anyway lead to the same outcome. Provided that the court,
personifying the reasonable man, takes an approach which is based on broad
common sense, without inappropriate reliance on special knowledge, the
minutiae of court procedure or other matters outside the ken of the ordinary,
reasonably well-informed member of the public, there should be no risk that
the courts will not ensure both that justice is done and that it is perceived
by the public to be done.
- When applying the test of real danger or
possibility (as opposed to the test of automatic disqualification under
Dimes and Pinochet (No. 2) it will very often be appropriate to
enquire whether the judge knew of the matter relied on as appearing to
undermine his impartiality, because if it is shown that he did not know of it
the danger of its having influenced his judgment is eliminated and the
appearance of possible bias is dispelled. As the Court of Appeal of New
Zealand observed in Auckland Casino Ltd v. Casino Control Authority
[1995] 1 NZLR 142 at 148, if the judge were ignorant of the allegedly
disqualifying interest:
"there would be no real danger of bias, as no one could suppose
that the Judge could be unconsciously affected by that of which he knew
nothing (".
- It is noteworthy that in R. v. Gough
evidence was received from the juror whose impartiality was in issue (pages
651G and 658D), and reliance was placed on that evidence (page 652F); both in
the Court of Appeal and the House of Lords it was accepted that if the correct
test was the real danger or possibility test the appeal could not succeed,
since the allegedly disqualifying association had admittedly not been known to
the juror at the time when the verdict had been returned, and therefore there
was no possibility that it could have affected her decision (pages 652D, 660G
and 670G). 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.
- When members of the Bar are appointed to sit
judicially, whether full-time or part-time, they may ordinarily be expected to
know of any past or continuing professional or personal association which
might impair or be thought to impair their judicial impartiality. They will
know of their own affairs, and the independent, self-employed status of
barristers practising in chambers will relieve them of any responsibility for,
and (usually) any detailed knowledge of, the affairs of other members of the
same chambers. The position of solicitors is somewhat different, for a
solicitor who is a partner in a firm of solicitors is legally responsible for
the professional acts of his partners and does as a partner owe a duty to
clients of the firm for whom he or she personally may never have acted and of
whose affairs he or she personally may know nothing. While it is vital to
safeguard the integrity of court proceedings, it is also important to ensure
that the rules are not applied in such a way as to inhibit the increasingly
valuable contribution which solicitors are making to the discharge of judicial
functions. Problems are, we apprehend, very much more likely to arise when a
solicitor is sitting in a part-time capacity, and in civil rather than
criminal proceedings. But we think that problems can usually be overcome if,
before embarking on the trial of any assigned civil case, the solicitor
(whether sitting as deputy district judge, assistant recorder, recorder or
section 9 judge) conducts a careful conflict search within the firm of which
he is a partner. Such a search, however carefully conducted and however
sophisticated the firm's internal systems, is unlikely to be omission-proof.
While parties for and against whom the firm has acted, and parties closely
associated, would (we hope) be identified, the possibility must exist that
individuals involved in such parties, and parties more remotely associated,
may not be identified. When in the course of a trial properly embarked upon
some such association comes to light (as could equally happen with a
barrister-judge), the association should be disclosed and addressed, bearing
in mind the test laid down in R. v. Gough. The proper resolution of any
such problem will, again, depend on the facts of the case.
- In any case giving rise to automatic
disqualification on the authority of Dimes and Pinochet (No. 2),
the judge should recuse himself from the case before any objection is raised.
The same course should be followed if, for solid reasons, the judge feels
personally embarrassed in hearing the case. In either event it is highly
desirable, if extra cost, delay and inconvenience are to be avoided, that the
judge should stand down at the earliest possible stage, not waiting until the
eve or the day of the hearing. Parties should not be confronted with a
last-minute choice between adjournment and waiver of an otherwise valid
objection. If, in any case not giving rise to automatic disqualification and
not causing personal embarrassment to the judge, he or she is or becomes aware
of any matter which could arguably be said to give rise to a real danger of
bias, it is generally desirable that disclosure should be made to the parties
in advance of the hearing. If objection is then made, it will be the duty of
the judge to consider the objection and exercise his judgment upon it. He
would be as wrong to yield to a tenuous or frivolous objection as he would to
ignore an objection of substance. We find force in observations of the
Constitutional Court of South Africa in President of the Republic of South
Africa & Others v. South African Rugby Football Union & Others
1999 (7) BCLR (CC) 725 at 753, even though these observations were directed to
the reasonable suspicion test:
"It follows from the foregoing that the correct approach to this
application for the recusal of members of this Court is objective and the
onus of establishing it rests upon the applicant. The question is whether a
reasonable, objective and informed person would on the correct facts
reasonably apprehend that the judge has not or will not bring an impartial
mind to bear on the adjudication of the case, that is a mind open to
persuasion by the evidence and the submissions of counsel. The
reasonableness of the apprehension must be assessed in the light of the oath
of office taken by the judges to administer justice without fear or favour;
and their ability to carry out that oath by reason of their training and
experience. It must be assumed that they can disabuse their minds of any
irrelevant personal beliefs or pre-dispositions. They must take into account
the fact that they have a duty to sit in any case in which they are not
obliged to recuse themselves. At the same time, it must never be forgotten
that an impartial judge is a fundamental prerequisite for a fair trial and a
judicial officer should not hesitate to recuse herself or himself if there
are reasonable grounds on the part of a litigant for apprehending that the
judicial officer, for whatever reasons, was not or will not be
impartial."
- We also find great persuasive force in three
extracts from Australian authority. In Re JRL, ex parte CJL (1986) 161
CLR 342 at 352, Mason J., sitting in the High Court of Australia, said:
"Although it is important that justice must be seen to be done,
it is equally important that judicial officers discharge their duty to sit
and do not, by acceding too readily to suggestions of appearance of bias,
encourage parties to believe that by seeking the disqualification of a
judge, they will have their case tried by someone thought to be more likely
to decide the case in their favour."
- In Re Ebner [1999] FCA 110, the Federal
Court asked (in paragraph 37):
"Why is it to be assumed that the confidence of fair-minded
people in the administration of justice would be shaken by the existence of
a direct pecuniary interest of no tangible value, but not by the waste of
resources and the delays brought about by the setting aside of a judgment on
the ground that the judge is disqualified for having such an
interest?"
- In the Clenae case, above, Callaway JA, at
paragraph 89(e) of the judgment, observed:
"As a general rule, it is the duty of a judicial officer to hear
and determine the cases allocated to him or her by his or her head of
jurisdiction. Subject to certain limited exceptions, a judge or magistrate
should not accede to an unfounded disqualification application
..."
- 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. We cannot, however, conceive of circumstances in which an
objection could be soundly based on the religion, ethnic or national origin,
gender, age, class, means or sexual orientation of the judge. Nor, at any rate
ordinarily, could an objection be soundly based on the judge's social or
educational or service or employment background or history, nor that of any
member of the judge's family; or previous political associations; or
membership of social or sporting or charitable bodies; or Masonic
associations; or previous judicial decisions; or extra-curricular utterances
(whether in text books, lectures, speeches, articles, interviews, reports or
responses to consultation papers); or previous receipt of instructions to act
for or against any party, solicitor or advocate engaged in a case before him;
or membership of the same Inn, circuit, local Law Society or chambers
(KFTCIC v. Icori Estero SpA (Court of Appeal of Paris, 28 June 1991,
International Arbitration Report. Vol. 6 #8 8/91)). By contrast, 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.
- We do not consider that waiver, in this context,
raises special problems (Shrager v. Basil Dighton Ltd. [1924] 1 KB 274
at 293; R. v. Essex Justices, ex parte Perkins [1927] 2 KB 475 at 489;
Pinochet (No. 2), at 285; Auckland Casino, above, at 150, 151;
Vakauta v. Kelly, above, at 572, 577). If, appropriate disclosure
having been made by the judge, a party raises no objection to the judge
hearing or continuing to hear a case, that party cannot thereafter complain of
the matter disclosed as giving rise to a real danger of bias. It would be
unjust to the other party and undermine both the reality and the appearance of
justice to allow him to do so. What disclosure is appropriate depends in large
measure on the stage that the matter has reached. If, before a hearing has
begun, the judge is alerted to some matter which might, depending on the full
facts, throw doubt on his fitness to sit, the judge should in our view enquire
into the full facts, so far as they are ascertainable, in order to make
disclosure in the light of them. But if a judge has embarked on a hearing in
ignorance of a matter which emerges during the hearing, it is in our view
enough if the judge discloses what he then knows. He has no obligation to
disclose what he does not know. Nor is he bound to fill any gaps in his
knowledge which, if filled, might provide stronger grounds for objection to
his hearing or continuing to hear the case. If, of course, he does make
further enquiry and learn additional facts not known to him before, then he
must make disclosure of those facts also. It is, however, generally
undesirable that hearings should be aborted unless the reality or the
appearance of justice requires that they should.
Locabail (UK) Ltd v Bayfield Properties Ltd and another.
Locabail (UK) Ltd and another v Waldorf Investment Corporation and
others
The Background
- Mr Lawrence Collins QC is a solicitor and a senior
partner in Herbert Smith. Since 1995 he has been head of Herbert Smith's
Litigation and Arbitration Department. Herbert Smith is a firm of some 145
partners. Mr Collins became Queen's Counsel in 1997 and in the same year was
appointed by the Lord Chancellor under section 9(4) of the Supreme Court Act
1981 to sit as a deputy High Court Judge in the Chancery Division. He has sat
on a number of occasions in that capacity.
- In October and November 1998 Mr Collins, sitting
as a deputy High Court Judge, heard two cases in each of which the plaintiff
was Locabail (UK) Ltd and in each of which Locabail was attempting to enforce
charges securing repayment of advances made to Mr Emmanuel, Mrs Emmanuel's
husband, or to companies controlled by him. In one case, the security
consisted of Hans House in Knightsbridge. Hans House was owned by Waldorf
Investment Corporation (`Waldorf'), a Liberian company controlled by Mr
Emmanuel. In the other case the security consisted of Hawks Hill, a country
estate in Chobham, Surrey. Hawks Hill had been owned by Aurora Enterprises
S.A., a Panamanian company also controlled by Mr Emmanuel, but in 1995, by
agreement between Locabail and Mr Emmanuel (or his companies), was transferred
to Bayfield Properties Ltd (`Bayfield'), an Isle of Man company controlled by
Mr Emmanuel. Locabail's charge over Hawks Hill was replaced by a charge in
favour of Allied Trust Bank to secure funds advanced by Allied Trust Bank to
Bayfield for the purchase of Hawks Hill from Aurora.
- Allied Trust Bank commenced mortgage proceedings
for possession of Hawks Hill and obtained a possession order on 18 June 1996.
A few days later Locabail took an assignment of the Allied Trust Bank charge
and was substituted as plaintiff.
- Mrs Emmanuel claimed to be the beneficial owner of
Hawks Hill. Her claim was based on representations alleged to have been made
to her by Mr Emmanuel prior to their marriage and on the expenditure by her of
money in reliance on the representations. In January 1997 she became a
defendant in the Bayfield action and applied to have the possession order set
aside.
- Hans House had been the matrimonial home of Mr and
Mrs Emmanuel. It had been charged to Locabail. In April 1998 Locabail
commenced mortgage proceedings for possession of Hans House. The defendants
were Waldorf and Mr and Mrs Emmanuel. Summary judgment under Order 14 was
obtained by Locabail in August 1998. Waldorf and Mr Emmanuel consented to the
order. Mrs Emmanuel did not. She contended that Mr Emmanuel had assured her
that she had a one half share in Hans House, that in reliance on that
assurance she had expended money on the property and that in consequence she
had an equitable interest binding on Locabail. She had, however, signed a
letter of consent to the charge and Locabail had been provided with a
certificate from her solicitor stating that he had advised her separately and
that she appeared to have given her consent voluntarily. So summary judgment
for possession was given. After the order had been made Mrs Emmanuel changed
her solicitors, gave notice of appeal and filed evidence in support of a
contention that her consent had been given as a result of undue influence.
- The trial of the Hawks Hill action, in which Mrs
Emmanuel was applying for the order for possession of Hawks Hill to be set
aside, began on 19 October 1998. The trial lasted 16 days. The deputy judge
reserved his judgment. Later, in November 1998, he heard Mrs Emmanuel's appeal
against the Order 14 judgment in the Hans House action. He reserved his
judgment. Both judgments were given together on 9 March 1999. They were
adverse to Mrs Emmanuel. The deputy judge did not accept, either in relation
to Hawks Hill or in relation to Hans House, that Mrs Emmanuel was entitled to
the equitable interests she had claimed. It is not necessary for the purposes
of this judgment to describe why it was that he came to those conclusions.
- On 29 March 1999, before the orders made on 9
March had been drawn up, Mrs Emmanuel made an application to the deputy judge
asking him to disqualify himself from further dealing with the two cases and
to direct a re-hearing before another judge. Mrs Emmanuel's application was
based upon the fact that Herbert Smith had been, and probably still was,
acting for a Russian company, Sudoexport, which had claims against Mr Emmanuel
and against a company, Howard Holdings Inc., controlled by Mr Emmanuel.
Sudoexport had obtained a bankruptcy order against Mr Emmanuel and a
winding-up order against Howard Holdings Inc. Herbert Smith were acting for
the liquidator of Howard Holdings Inc, as well as for Sudoexport. It seems
that the company had substantial claims against Mr Emmanuel. For reasons which
we will expand upon later, Mrs Emmanuel contended that the deputy judge, being
a partner in Herbert Smith, was not a proper person to have been the judge in
the cases in which Locabail was seeking to enforce the securities obtained
from Mr Emmanuel's companies. It was said that a reasonable person, knowing
the circumstances, might reasonably feel doubts as to the ability of the
deputy judge to be impartial and unbiased. The deputy judge gave judgment on
the same day, 29 March, dismissing the application.
- Mrs Emmanuel has applied for permission to appeal
against the judgments given on 9 March and also against the deputy judge's
dismissal of her application on 29 March. She has filed, with her application
for permission to appeal, a draft notice of appeal setting out the proposed
grounds of appeal and a supplemental document giving details of the respects
in which it is contended that the deputy judge's findings of fact and handling
of evidence were unsatisfactory. The hearing before us, however, has been
confined to a consideration of Mrs Emmanuel's bias point. If she succeeds on
that point, she is entitled to a new hearing before another judge of the Hawks
Hill application and the Hans House appeal. If she fails on that point she is
still able to prosecute her application for permission to appeal on the other
grounds set out in her draft notice of appeal.
- Mrs Emmanuel's bias case is based on the
solicitor/client relationship between Herbert Smith and Sudoexport and between
Herbert Smith and the liquidator of Howard Holdings Inc. These matters came to
light in the course of the hearing of the Hawks Hill case. The manner in which
that happened appears from the deputy judge's 29 March judgment:
"It is not suggested that I knew of these matters prior to the
commencement of the trial. On Day 7 of the trial in the Hawks Hill action
[Tuesday 27 October 1998] Mrs Emmanuel produced further discovery of the
file in the possession of the solicitors who had acted for her in her
divorce proceedings against Mr Emmanuel. Since her advisers in the Hawks
Hill action had not previously seen the file, and since it inevitably
contained privileged material, I did not sit for a substantial part of that
day so that the matrimonial file could be examined by Mrs Emmanuel's
advisers and privileged material removed. The advisers to [Locabail] and I
were provided with the remainder of the file towards the end of that
day.
The first document in the file was a fax sent in June 1996 from
Mr Peter Taroulareas, the first husband of Mrs Emmanuel, to her solicitors,
attaching a press cutting from August 1995 about a bankruptcy order obtained
against Mr Emmanuel by Sudoexport".
The press cutting to which the deputy judge referred said, under the
headline "Greek shipowner in bankruptcy puzzle", that:
"Herbert Smith - the top British solicitors working for Russian
trading group Sudoexport - confirmed ... that it had won a bankruptcy order
against Emmanuel".
- The article referred to Mr Emmanuel's purchase
from Sudoexport of a ship for US$20 million and went on "... The ship-owning
company was alleged to have collapsed owing the Russians US$10 million ... .
Sudoexport applied for the company to be wound up in London. The petition was
opposed but Emmanuel was asked to pay Sudoexport's legal costs of GBP 20,000.
Emmanuel is alleged to have not done so and Herbert Smith, acting for the
Russians, started proceedings for personal bankruptcy".
- The ship-owning company referred to in the article
was Howard Holdings Inc, but it may be Mrs Emmanuel did not know that until
the deputy judge gave his 29 March judgment.
- The deputy judge, having come across the press
cutting during the course of his perusal of the matrimonial file in the
evening of 27 October 1998, made an immediate disclosure on the morning of 28
October. We have been supplied with a transcript of what he said:
"Judge Collins: Mr Mann and Miss Williamson, I had a
quick flick through Bundle T last night and I discovered on the second page
for the first time that the firm of which I am a partner seems to have had
something to do with attempting to get a bankruptcy order against Mr
Emmanuel. It is the first time I have heard of it, and I had nothing
whatever to do with it."
- Neither Mr Mann QC for Locabail nor Miss
Williamson QC for Mrs Emmanuel made any response to the disclosure made by the
deputy judge. Neither asked for time to consider the position more fully.
Neither asked for any additional information about the matters the deputy
judge had referred to. Each side, of course, had its own copy of the
press-cutting in Bundle T. Both sides were content for the hearing to
continue. It did continue for a further eight days after which, as we have
said, judgment was reserved and eventually given on 9 March 1999.
The Issues
- The arguments put forward in support of the
contention that the deputy judge should have acceded to the 29 March
application were essentially the same below as those advanced before us. Three
points are made by Miss Williamson:-
- She submits that there was a conflict of interest
between Mrs Emmanuel and Herbert Smith's clients, Sudoexport and/or the
liquidator of Howard Holdings Inc. The conflict of interest is constructed as
follows: Sudoexport has money claims against Mr Emmanuel. So does Howard
Holdings Inc. in liquidation. Locabail is one of Mr Emmanuel's creditors. If
Mrs Emmanuel's claims to equitable interests in the two properties were to
succeed, there would be a reduction in the value to Locabail of its security
and an increase in the unsecured debt owing by Mr Emmanuel to Locabail. This
would be detrimental to the ability of Sudoexport and the liquidator of Howard
Holdings Inc. to obtain payment of the sums owing to them by Mr Emmanuel. The
deputy judge explained the point in his judgment: "... if [Mrs Emmanuel]
failed, [Locabail] would be removed as a creditor in competition with
Sudoexport". There is, therefore, Miss Williamson submitted, a conflict of
interest between Mrs Emmanuel and Herbert Smith's clients.
Miss Williamson's second point was that the conflict of interest between
Mrs Emmanuel and Herbert Smith's clients would have disqualified Herbert Smith
from acting as Mrs Emmanuel's solicitor. She relied on paragraph 15.01 of the
Guide to the Professional Conduct of Solicitors (7th Edition 1996) published
by the Law Society: Paragraph 15.01 provides:
"A solicitor or firm of solicitors should not accept
instructions to act for two or more clients where there is a conflict or a
significant risk of a conflict between the interests of those
clients".
- Miss Williamson's submission was that if a
conflict of interest prevented a solicitor from accepting instructions to act
for someone, the conflict would be sufficient to disqualify the solicitor from
sitting as a judge on a case in which that person was a party.
- Miss Williamson's third point was based on the
likelihood that, in the proceedings in which Herbert Smith had acted for
Sudoexport and for Howard Holdings Inc. (in liquidation) against Mr Emmanuel,
allegations of a discreditable nature had been made against Mr Emmanuel. This,
submitted Miss Williamson, gives rise to a risk that Mrs Emmanuel, and her
witnesses in the Locabail litigation who were associates of Mr Emmanuel, may
in the eyes of the deputy judge have become tarnished by their association
with Mr Emmanuel.
- These were the three main points relied on by Miss
Williamson in support of her submission that there was a real danger that the
deputy judge might, in hearing the Hawks Hill application and the Hans House
appeal, have been biased against Mrs Emmanuel.
- There was an additional issue. When, on Day 8 of
the hearing, the deputy judge made the disclosure recorded in the transcript,
Mrs Emmanuel could then have made an objection to the deputy judge continuing
to hear the case. Or she could have asked for time to consider the position.
She did neither, but allowed the hearing to continue to a conclusion. She
could, after the Hawks Hill hearing had come to an end, have objected to the
deputy judge hearing the Hans House appeal. She did not do so, and, without
objection, he heard the appeal. Thereafter, during the three and half month
delay before the reserved judgment was delivered, no bias objection was made.
An inference that might be drawn is that Mrs Emmanuel wanted to await the
result of the two hearings, and only made her bias objection when she knew she
had lost. So the question arises whether she must be taken to have waived any
bias objection.
- As to this, Mrs Williamson's response was to
submit, first, that the disclosure made by the deputy judge was not complete
disclosure, second, that a waiver could only be effective when made by a
person with full knowledge of the relevant facts and, third, that in view of
Mrs Emmanuel's incomplete knowledge of the circumstances of Herbert Smith's
involvement in the litigation against her husband, she was never put to her
election as to what she should do and waiver could not be raised against her.
- The "waiver" issue is one which, logically, falls
to be considered after the bias issues have been considered.
The bias issues
- This is not a case in which actual bias on the
part of the deputy judge is alleged. Is it a case in which the judge has a
sufficient pecuniary or propriety interest in the outcome of the trial so as
to attract the automatic disqualification principle expressed in Dimes?
If it is, then the deputy judge is automatically disqualified. If it is not,
then it is a case to which the principles expressed in R -v- Gough must
be applied. It was suggested by Miss Williamson that this was a case to which
Dimes applied. Her argument went like this. The deputy judge is a
partner in Herbert Smith. Herbert Smith was acting for Sudoexport and Howard
Holdings Inc in litigation against Mr Emmanuel. Success in achieving the
maximum possible recovery from Mr Emmanuel would enhance the goodwill of
Herbert Smith and thereby tend to increase its profits. The deputy judge would
share in the firm's profits. Miss Williamson suggested, also, the possibility
that Herbert Smith might be acting under a conditional fee agreement with fees
dependent on the level of recoveries extracted from Mr Emmanuel. But in order
to attract the Dimes consequence of automatic disqualification
something more must, in our judgment, be present than the tenuous connection
between the firm's success in an individual case on the one hand and the
firm's goodwill and the level of profits on the other. And if the pecuniary or
proprietary interest has to depend upon the existence of a conditional fee
agreement of the unusual character suggested by Miss Williamson, there must be
at least some evidence to suggest the existence of such an agreement. Here
there is none. Miss Williamson's suggestion is wholly speculative and
hypothetical. In our judgment this is not a case to which the Dimes
principle of automatic disqualification applies. The R -v- Gough test
must be applied and the court must ask itself whether "... in the
circumstances of the case ... it appears that there was a real likelihood, in
the sense of a real possibility, of bias ..." on the part of the deputy judge
(Lord Goff at p. 668).
- In answering this question, the court must take
into account the actual facts as disclosed by the evidence and, in particular,
what it was that the judge knew at the time the case was being heard. In R
-v- Gough evidence was received from a juror as to whether she recognised
the name "Gough" as being the name of the neighbour whom she knew as "Steve".
She said she did not. She said she had had no idea that her next door
neighbour, "Steve", was the brother of the accused. This absence of knowledge
of the connection between "Steve" and the accused formed part of the basis on
which the House of Lords (and the Court of Appeal) assessed whether there was
any real danger of bias.
- In the present case, the deputy judge told the
parties, when he made the disclosure on 28 October 1998, that he knew no more
of the litigation in which Herbert Smith were acting than was disclosed by the
article. No-one then or since has suggested that that was not true. In his 29
March 1999 judgment the deputy judge referred to remarks made by Lord Denning
in Metropolitan Properties Co Ltd -v- Lannon [1969] 1QB 577, to the
effect that a barrister or solicitor should not sit as a judge on a case to
which one of his clients was a party, nor on a case where he was already
acting against one of the parties, and continued:
"It is for that reason that I, and no doubt others who sit in a
part time capacity, take steps to discover whether that is so. I should add
that in the Hawks Hill action Bayfield Properties Ltd (by then controlled by
the mortgagees of its shares) consented to the possession order and took no
further part in the proceedings; and that in the Hans House action Waldorf
Investment Corporation and Mr Emmanuel were not parties to the appeal: they
did not appear in the action, and consented in writing to the possession
order".
- It is clearly to be inferred from this passage
that the deputy judge, before he heard the Hawks Hill application and the Hans
House appeal, had a conflict search carried out within Herbert Smith in order
to make sure that his firm was not acting for or against Locabail or for or
against Mrs Emmanuel. He did not, it must also be inferred, make a conflict
search to ascertain whether or not his firm was acting for or against Mr
Emmanuel.
- In his 29 March judgment the deputy judge
identified an important question:
"No doubt there may be cases in the future where,
notwithstanding conflict searches, the fact that a large firm is acting for
or against a party, or an entity connected with a party, will not be known
to a deputy judge, and might not emerge until after judgment has been given.
The question might then arise as to whether that would in itself require the
judgment of a judge who did not know of the connection to be set
aside".
- This is a question that we have put to ourselves.
In our view, once the hypothesis that the judge "did not know of the
connection" is accepted, the answer, unless the case is one to which
Dimes applies, becomes obvious. How can there be any real danger of
bias, or any real apprehension or likelihood of bias, if the judge does not
know of the facts that, in argument, are relied on as giving rise to the
conflict of interest? In pressing her case on this point Miss Williamson
argued that it was incumbent upon the deputy judge, who had acquired from the
press cutting limited knowledge of a connection between his firm and Mr
Emmanuel, to make inquiries in order to discover and then to disclose to the
parties the full circumstances of the connection. Unless this were done, she
submitted, the real danger of bias test would be satisfied. We do not accept
this. Miss Williamson, in our view, is confusing the Dimes approach
with the Gough approach. If Dimes applies, i.e. if the judge has
a sufficiently significant pecuniary or proprietary interest in the outcome of
the trial, the knowledge or absence of knowledge of the judge is, in
principle, irrelevant. If a judge with limited knowledge of some indirect
connection between himself and the case does not make any further inquiries,
there may be some risk, an outside chance, that inquiries, if made, would
reveal some disqualifying pecuniary or proprietary interest. If there is in
fact such an interest, the judge's lack of knowledge of it or forgetfulness
about it will not enable the Dimes principle of automatic
disqualification to be avoided. But if there is no such interest, and there is
none in the present case, the R -v- Gough test must be applied and, for
that purpose, all that is necessary is to ask whether, in the light of the
judge's actual knowledge at the time of the hearing and of any other relevant
facts established by the evidence, the real danger of bias test has been
satisfied.
- The matters relied on by Miss Williamson as
demonstrating the requisite real danger must be considered cumulatively. There
are three matters relied on. Each has been previously referred to in this
judgment.
- First, there is the point that Herbert Smith's
clients, Sudoexport and Howard Holding Inc. in liquidation, had an interest in
the failure of Mrs Emmanuel's claims to beneficial interests in Hawks Hill and
Hans House. The success of these claims would reduce the assets to which
Locabail could look in order to obtain payment of its secured debts. The
balance remaining owing to Locabail would increase the amount of the debts
which would rank for dividend in Mr Emmanuel's bankruptcy and reduce the
amount of any dividend that creditors might receive. Hence the conflict. The
point, when explained by Miss Williamson, was easy enough to follow. It was
not one, however, which would immediately occur to even an informed reader of
the press cutting disclosed on 28 October. It plainly did not occur to the
deputy judge, nor did it occur to Mrs Emmanuel or her lawyers. It did not
occur to anyone at the time the disclosure was made that Sudoexport might have
an interest in the failure of Mrs Emmanuel's claims. All the facts on which
the alleged conflict of interest depended were known at the time. The press
cutting disclosed that Herbert Smith was acting for Sudoexport, that
Sudoexport had many claims against Mr Emmanuel and that Sudoexport had
obtained a bankruptcy order against Mr Emmanuel. Mr Emmanuel's connection with
Hawks Hill and Hans House was, of course, known to everyone. So was his
potential indebtedness to Locabail. So was the fact that the deputy judge was
a Herbert Smith partner. But the alleged conflict of interest occurred to
no-one. Why should it have occurred to the reasonable onlooker?
- Miss Williamson placed reliance on the Law
Society's conflict rules. These, it was argued, would have disqualified the
deputy judge - or Herbert Smith as a firm - from acting for Mrs Emmanuel or
for Locabail in the Hawks Hill or Hans House litigation. We think that is
probably correct. We see the force of Miss Williamson's submission that, if a
conflict prevents a solicitor from acting for a party to litigation, the
conflict must surely also disqualify the solicitor from sitting as a deputy
judge in that litigation. But the submission is, in our opinion, too
inflexible. Everything depends on the circumstances. If a serious conflict of
interest becomes apparent well before the hearing is due to commence, it seems
plain to us that the judge should not sit on the case. This is so whether the
judge is a full time judge or a solicitor deputy or a barrister deputy. On the
other hand, if a conflict does not become apparent until very shortly before
the hearing or during the hearing, the position may be different. The course
the judge, or deputy judge, should take will depend on all the circumstances.
Inflexible rules are best avoided. Plainly the judge should not sit, no matter
what inconvenience to the parties may result, if he doubts his ability to be
impartial. But, short of that, a number of variable factors will need to be
taken into account. What is the nature of the conflict of interest? Are the
parties willing for the judge to hear the case? Do they positively want him to
hear the case rather than have to suffer an adjournment? Is another judge
available to take on the case? If the case has already started, how long has
it been going on and how much is left? What will be the expense consequences
for the parties if the judge withdraws? How will it appear to the reasonable
onlooker if the judge does not withdraw?
- Of these questions perhaps only the first and the
last are directly relevant to the Gough test. But it must be remembered
that in Gough the arguably damaging relationship between the juror and
the accused's brother only came to light after the trial was over. In a case
in which before or during the trial the facts relating to the alleged bias
have been disclosed to the parties, it seems to us right that attention should
be paid to the wishes of the parties. They are the principals. If they are
content that the trial should proceed the judge should, in our view, except
where he doubts his ability to be impartial, be very slow to abort the trial.
If one party wants the trial to continue and the other wants it aborted, the
judge must decide what to do, weighing all the factors and asking the
questions to which we have referred. It follows that we do not accept that the
discovery of a conflict of interest which, under the Law Society's conflict
rules, would disqualify a solicitor from acting for one or other of the
parties to a case necessarily bars the solicitor from hearing the case as a
deputy judge or requires a hearing already started to be aborted or a judgment
given on the case to be set aside. Everything depends on the circumstances of
the particular case.
- The second point relied on by Miss Williamson is
based upon the deputy judge's interest in fees earned by Herbert Smith. The
point has already been discussed in this judgment. It is as tenuous and
insubstantial for the purposes of the Gough test as it is for the
purpose of establishing that the deputy judge had a sufficient pecuniary or
proprietary interest in the outcome of the litigation to attract automatic
disqualification.
- Miss Williamson's third point was based upon the
belief that, in the Sudoexport litigation against Mr Emmanuel and the
litigation against him brought by the Howard Holdings Inc. liquidator,
discreditable allegations about him were likely to have been made, and upon a
consequent fear that these allegations might tarnish Mrs Emmanuel and her
witnesses in the eyes of the deputy judge. This point has, in our judgment, no
merit at all. First, Mrs Emmanuel, who is estranged from her husband, has in
hearings before the deputy judge herself made discreditable allegations about
him. Second, as the deputy judge rightly pointed out in his 29 March judgment,
it is the duty of a judge to put out of mind irrelevant or immaterial matters,
particularly those of a prejudicial character. Knowledge by a judge of such
matters goes nowhere towards establishing a real danger of bias.
- In considering the cumulative weight of these
matters, there are one or two other submissions made by Miss Williamson that
should be mentioned.
- She submitted that the deputy judge's statement on
28 October that he knew no more of the Sudoexport matters than was contained
in the press cutting should not be entertained. His state of knowledge, she
submitted, was irrelevant. This submission is contrary to authority. In R
-v- Gough an affidavit from the juror as to the juror's state of knowledge
was accepted.
- Mr Mann QC, counsel for Locabail, submitted that
there was no absolute rule as to whether or not the court should accept a
statement from the judge as to his or her state of knowledge of facts relevant
to a bias allegation. He submitted that although the court could not
investigate the judge's motives, and so could not accept a statement from the
judge that he was not biased, the court could accept, and if necessary test by
reference to the facts of the case, statements by the judge as to what he knew
or did not know at the relevant time. We think this is right and in accordance
with authority. If the judge's statement about his knowledge is, objectively
viewed, cogent, then that is the basis on which the reasonable onlooker, or
the court personifying the reasonable onlooker, will ask whether there was any
real danger of bias. If the judge's statement is, objectively viewed, an
improbable one, then that is how the reasonable onlooker will approach it.
- Miss Williamson challenged the cogency of the
deputy judge's statement that he knew nothing more about the Sudoexport
litigation than was contained in the press cutting. She submitted that, in the
circumstances, "the mere fact that the firm is dealing with the matter which
is a conflicting matter must give rise to an expectation that the [solicitor
judge] will know at least something about it". We regard this proposition,
when applied to a firm like Herbert Smith with around 145 partners and over
300 assistant solicitors, as wholly unreal. We do not think there was any such
expectation.
- We regard the deputy judge's statement that he had
not known of the matters disclosed in the press cutting until he read it as
eminently believable. There is nothing that casts doubt on the statement.
Moreover no doubt as to the accuracy of the statement was raised by Mrs
Emmanuel or her lawyers either at the time or at any time until after judgment
had been given against her.
- In our judgment the reasonable onlooker, and the
court personifying the reasonable onlooker, would accept the deputy judge's
statement about his knowledge and, on that basis, would find no difficulty in
concluding that there was no real danger that the judge had been biased.
Waiver
- In our judgment, Mrs Emmanuel and her lawyers had
to decide on 28 October what they wanted to do. They could have asked for time
to consider the position. They could have asked the deputy judge to recuse
himself and order the proceedings to be started again before another judge.
They could have told the judge they had no objection to him continuing with
the hearing. In the event they did nothing. In doing nothing they were
treating the disclosure as being of no importance. The hearing then continued
for a further 7 days, judgment was reserved, the Hans House appeal was heard,
judgment was reserved, and judgment in both cases was given three and half
months later. During all this period Mrs Emmanuel and her lawyers did nothing
about the disclosure that had been made on 28 October. They only sprang into
action and began complaining about bias after learning from the deputy judge's
judgment that Mrs Emmanuel had lost.
- Mrs Emmanuel's application for permission to
appeal and draft notice of appeal raise a large number of objections to the 9
March judgment expressed over several pages. We are concerned with none of
these objections. They may or may not be well founded. The deputy judge may or
may not have been unfair to Mrs Emmanuel in the way in which he dealt with her
evidence and that of her witnesses. These are matters which must be raised
with another court on another occasion. We are concerned only with the
complaint based upon an appearance of bias allegedly produced by Herbert
Smith's involvement in the litigation against Mr Emmanuel. This involvement
was, in its essentials, disclosed on 28 October. It was not open to Mrs
Emmanuel to wait and see how her claims in the Locabail litigation turned out
before pursuing her complaint of bias. Miss Williamson protests that on 28
October not enough was disclosed to put Mrs Emmanuel to her election. We
disagree. The essentials of the conflict of interest case that is now relied
on were to be found in the press cutting. Mrs Emmanuel wanted to have the best
of both worlds. The law will not allow her to do so.
- We agree with the reasons given by the deputy
judge in his 29 March 1999 judgment for dismissing Mrs Emmanuel's bias
application. We refuse permission to appeal from that judgment.
Error! Reference source not found.Timmins v Gormley
- This case has caused us particular concern. The
defendant, Timothy Gormley, seeks permission to appeal against the judgment of
Mr Recorder Braithwaite QC given on 3 June 1999. At the Liverpool County Court
the recorder awarded the claimant, Margaret Timmins, £227,123.
- Mr Robert Jay QC who represents the defendant made
his submissions with admirable moderation and precision. In addition to
relying on a number of other grounds of appeal, the defendant contends that
the judgment of the recorder should be set aside for apparent bias, that is, a
real danger of bias on the part of the recorder. In support of his allegation
of bias Mr Jay relies on certain articles written by the recorder which he
submits indicate that there is a real danger that the recorder at the time of
the trial was or could have been influenced by an unconscious but settled
prejudice against the insurers of the defendant who are the real defendants in
this case. Mr Jay also submits that the findings which the judge made were so
favourable to the claimant that they provide support for this allegation of
bias.
- The action arose out of a traffic accident on 14
October 1994. The claimant commenced proceedings on 1 November 1995. She
claimed damages for her injuries. These include injury to her cervical and
thoracic spine. She also claimed special damages, which included continuing
loss of earnings. She initially limited her claim to £25,000. Promptly on 20
November 1995 a defence was filed. The defence admitted negligence but not the
damages. On 22 November 1995 the claimant obtained judgment for damages to be
assessed. The defendant was guilty of no delay. However, it was not until 19
March 1999 that the claimant filed her final schedule of special damage. By
that time the sum specified had grown to £199,413, including past loss of
earnings amounting to £32,120 and future loss of earnings amounting to
£133,750. The future loss of earnings was calculated on the basis that the
claimant would never work again. A counter-schedule was filed on behalf of the
defendant. This accepted the arithmetical calculation of the claim but put in
issue the claimant's alleged inability to work.
- In general it would not be unfair to say that the
recorder determined almost every issue in favour of Mrs Timmins. He found that
before the accident she was a happy and fulfilled person. There were
indications in the medical evidence that she was not a reliable historian. The
recorder indicated in his judgment that he had "a suspicion" that part of the
reason for this was that "doctors sometimes do not have the time to listen and
to understand what is troubling somebody". He thought that on all matters
relevant to his judgment Mrs Timmins was in fact actually telling him the
truth. The recorder considered that the defendant's doctor was "slightly
dismissive" of the claimant's difficulties. He preferred the claimant's
medical evidence to that of the defendant. He concluded that although the
defendant relied on a video which the defence had arranged to be taken, it did
not support his case but, on the contrary, showed the claimant was severely
handicapped by her on-going problems. The accident had left her "crippled" in
a "holistic sense". It had spoilt her life. The recorder indicated, in case
there was an appeal, that the transcript would not be able to convey the
flavour of the manner in which the claimant gave evidence.
- In addition to his practice in personal injury
cases, primarily but not exclusively on behalf of claimants who are seeking
damages for personal injuries, Mr Braithwaite is a relatively prolific writer
in the area in which he practises. He is a consultant editor of the well known
and respected textbook Kemp and Kemp. Mr Braithwaite in a letter to the
court points out that it is a fundamental part of the policy of that book that
it should not favour either claimants or defendants. He has written
extensively on personal injury topics in almost all the publications devoted
to that subject. He has also lectured, appeared on television and acted abroad
as an expert on English personal injury law.
- The flavour of the four articles relied on as
suggesting bias can only be properly assessed by reading them as a whole.
However, that in "The Lawyer" of 21 June 1999, which is after the
trial, is probably the most revealing. It examines the Access to Justice
reforms in the context of personal injury and clinical negligence claims. It
suggests that the reforms are unrealistic in their expectations of defendants.
It is not credible that they "would recognise that it was their responsibility
to give the claimant real quality of life, whatever the cost. And they would
refrain from attacking a claimant's credibility without good cause... If
someone's life had been ruined they would do their utmost to deliver fair and
adequate compensation within a reasonable time frame." The Access to Justice
approach, Mr Braithwaite considered, was likely "to remain a dream". It was
inconsistent with the adversarial system in which lawyers had spent their
lives. "The chances of them changing behaviour overnight at this stage are as
unlikely as that of global insurers willingly [opening] their coffers to pay
paralysed and brain damaged accident victims the sums to which they are justly
entitled." The article suggests that "delaying tactics" are often
premeditated, in the hope that the case will just go away; that when an offer
is eventually made it is intended that the victim will accept a smaller sum
than is deserved, in order to put an end to the ongoing stress of the
litigation process. "Denying liability in cases where it is clear that
liability should not be questioned – for example where drivers have already
been convicted of dangerous or drunk driving – is common." Mr Braithwaite adds
that it is only with the assistance of determined lawyers that claimants are
likely to obtain a just settlement. He also makes adverse comments on experts
who specialise "in personal injury as 'defendant' experts." The article does
however end with an acknowledgement that to a limited extent lawyers of good
quality and insurers who are decent and humane are coming together to resolve
disputes without the intervention of the courts and the reforms may be a
catalyst which will accelerate this trend.
- The next article upon which Mr Jay relies is an
article in a special issue of Quantum (Double issue 4 and 5, 4
September 1998) devoted to the decision of the House of Lords in Wells v
Wells [1999] 1 AC 345. That decision resulted in successful personal injury claimants
receiving substantially increased damages for future long term care and long
term loss of earnings. The article contained a contribution from the recorder
and a contribution from a solicitor who was expressing "the defendants' view".
The recorder considered the decision a "wonderful victory" for claimants
generally and for Mr Kemp QC who had been arguing for the change reflected in
the decision of the House of Lords for many years.
- Neither of the articles to which we have referred
so far are couched in language which can be criticised as being inappropriate.
They do make clear that the recorder is very sympathetic to the position of
claimants who are pursuing claims for personal injuries. The earlier article
in addition indicates that the recorder strongly disapproves of insurers who
in his eyes adopt unacceptable practices. However it cannot be said it is
inappropriate for a judge to hold firm views as to insurers who adopt tactics
of this nature. After all, the Civil Procedure Reforms were in part designed
to prevent practices of the sort of which the recorder complains occurring in
the future. The recorder has reservations as to whether the reforms will bring
about the change of culture which is necessary. He is entitled to have
reservations. While it does lack balance, the article does not exhibit such a
lack of proportion that it can be regarded as showing a blinkered approach. As
to the Wells v Wells article, it could be said that the decision was
rectifying a previous state of affairs which was not fair to claimants and the
recorder was entitled to welcome the decision.
- The next article relied upon by Mr Jay was also in
Quantum (Issue 3, 10 August 1998). It contains a description of a case
which the recorder had recently successfully conducted on behalf of a
claimant. It is highly critical of the conduct of the defendant's insurers in
that case. It refers to them in trenchant terms as not doing anything to
assist the claimant in her plight. The article describes the defendant's
"team" as apparently lacking compassion and perception and their conduct as
reminding him "just how badly these cases can be managed". The final article
appeared in the Personal and Medical Injuries Law Letter (Vol.15, No.7,
July 1999). This time the article is a report on a case in which the recorder
was not personally involved. The case concerned a claim by a tetraplegic. It
suggests that the defence team had targeted the case "intending to create a
precedent to discourage plaintiffs generally, and apparently set out to attack
both the plaintiff and his experts" when the particular plaintiff had an
excellent record. The recorder indicates that the case has lessons for
plaintiffs' lawyers: "First, we should not allow ourselves to be deterred by
intimidatory tactics by defendants. Second, if a plaintiff's claim is
carefully researched and properly presented it ought to succeed". It is not
possible for us to say whether the recorder's criticisms are or are not
justified. However, we note that the plaintiff was successful in obtaining
judgment for a very substantial sum. It was a much larger sum than the
defendant's insurers were prepared to pay.
- When considering the weight which should be
attached to these articles, it is necessary to bear in mind that they are only
a small selection of the recorder's extensive writing on the subject of
personal injuries. They have been perfectly properly selected because it is
thought they support the defendant's contention that the recorder is a
committed advocate of the cause of claimants generally.
- Mr Jay makes no specific complaints about the
manner in which the case was conducted by the recorder.
- In relation to the conduct of the trial, Mr Edis
QC, on behalf of the claimant, has the advantage that the recorder very
properly gave full disclosure of information which might have resulted in the
defendant asking for the case to be tried by another judge. He did not choose
to do so. The recorder disclosed that he was a member of the Association of
Personal Injury Lawyers (APIL). He also disclosed that he was aware that there
had been a payment into court and the amount of that payment, and finally that
he had previously cross-examined the defendant's expert in a manner which had
caused offence to that expert. The defendant was only informed of these
matters shortly before the hearing when the case was transferred to the
recorder. This disclosure by the recorder is properly relied on as showing
that he was aware of his responsibilities to the defendant. If objection had
been taken the case would probably have had to be adjourned. But the defendant
was not then aware of the articles now said to show a real danger of bias, and
cannot be said to have waived any objection to which they may give rise.
- Mr Jay disclaims any reliance on the fact that the
recorder is a member of APIL, an organisation which normally represents
claimants rather than defendants.
- Although the judgment of the recorder was from the
claimant's point of view in very favourable terms, having heard Mr Edis's
submissions we do not consider that the judgment in itself provides any direct
support of the allegation of apparent bias. The findings the recorder made are
not so surprising that they support the allegation.
- The defendant's case on bias therefore turns on
the statements that the recorder made in the articles to which we have
referred. It is not inappropriate for a judge to write in publications of the
class to which the recorder contributed. The publications are of value to the
profession and for a lawyer of the recorder's experience to contribute to
those publications can further rather than hinder the administration of
justice. There is a long established tradition that the writing of books and
articles or the editing of legal textbooks is not incompatible with holding
judicial office and the discharge of judicial functions. There is nothing
improper in the recorder being engaged in his writing activities. It is the
tone of the recorder's opinions and the trenchancy with which they were
expressed which is challenged here. Anyone writing in an area in which he sits
judicially has to exercise considerable care not to express himself in terms
which indicate that he has preconceived views which are so firmly held that it
may not be possible for him to try a case with an open mind. This is the
position notwithstanding the fact that, as Mr Edis submits, there can be very
real advantages in having a judge adjudicate in the area of law in which he
specialises. But if this is to happen it must be recognised that his opinions
as to particular features of the subject will become known. The specialist
judge must therefore be circumspect in the language he uses and the tone in
which he expresses himself. It is always inappropriate for a judge to use
intemperate language about subjects on which he has adjudicated or will have
to adjudicate.
- Assistance in this situation is provided by the
decision of the High Court of Australia in the case of Vakauta v Kelly
(1989) 167 CLR 568. In that case, in the course of a trial for personal
injuries, the judge had made intemperate remarks about the medical evidence.
The majority of the court came to the conclusion that the remarks would have
excited in the minds of the parties a reasonable apprehension that the judge
would not bring an unprejudiced mind to the resolution of the matter before
him. In the judgment of the majority (Brennan, Deane and Gaudron JJ) it was
stated:
"It is inevitable that a judge who sits regularly to hear claims
for damages for personal injury will form views about the reliability and
impartiality of some medical experts who are frequently witnesses in his or
her court. In some cases and notwithstanding the professional detachment of
an experienced judge, it will be all but impossible to put such preconceived
views entirely to one side in weighing the evidence of a particular medical
expert. That does not, however mean that the judge is disqualified from
hearing the particular action or any other action involving that medical
expert as a witness. The requirement of the reality and the appearance of
impartial justice in the administration of the law by the courts is one
which must be observed in the real world of actual litigation. That
requirement will not be infringed merely because a judge carries with him or
her the knowledge that some medical witnesses who are regularly called to
give evidence on behalf of particular classes of plaintiffs (eg members of a
particular trade union), are likely to be less sceptical of a plaintiff's
claims and less optimistic in their prognosis of the extent of future
recovery than are other medical witnesses who are regularly called to give
evidence on behalf of particular classes of defendants (eg those whose
liability is covered by a particular insurer). If it were so infringed, the
administration of justice in personal injury cases would be all but
impossible.
On the other hand, there is an ill defined line beyond which the
expression by a trial judge of preconceived views about the reliability of
particular medical witnesses could threaten the appearance of impartial
justice". (pp.570/571)
- Those remarks were made in the context of a case
in which comments were made during a trial. Here we are concerned with
comments made in articles written in close proximity to the trial. The issue
is however the same.
- Did the recorder cross the "ill defined" line to
which that judgment refers? We have already given an indication of the nature
of the articles. The only other factor to which it is necessary to draw
attention is that in this particular case the insurers had not behaved in the
irresponsible manner of which the recorder so vehemently complained. They had
admitted liability promptly. They had made a payment into court and had only
contested issues which it was reasonable for them to contest on the evidence
which was available to them. The recorder had recognised that some insurers do
behave responsibly. The comments which he made about the conduct of insurers
would have been more justified in the past than they are today. Today, many
insurers and their legal advisers, particularly those legal advisers who are
members of FOIL (the Forum of Insurance Lawyers, the counterpart for
defendants' representatives of APIL, which has made a significant contribution
to the recent reforms) conduct litigation in accordance with the "Overriding
Objectives" set out in Part I of the CPR.
- We have found this a difficult and anxious
application to resolve. There is no suggestion of actual bias on the part of
the recorder. Nor, quite rightly, is any imputation made as to his good faith.
His voluntary disclosure of the matters already referred to show that he was
conscious of his judicial duty. The views he expressed in the articles relied
on are no doubt shared by other experienced commentators. We have, however, to
ask, taking a broad common sense approach, whether a person holding the
pronounced pro-claimant anti-insurer views expressed by the recorder in the
articles might not unconsciously have leant in favour of the claimant and
against the defendant in resolving the factual issues between them. Not
without misgiving, we conclude that there was on the facts here a real danger
of such a result. We do not think a lay observer with knowledge of the facts
could have excluded that possibility, and nor can we. We accordingly grant
permission to appeal on this ground, allow the defendant's appeal and order a
re-trial. We should not be thought to hold any view at all on the likely or
proper outcome of any re-trial.
Williams v Inspector of Taxes and Others
- Mrs Williams, who appears in person but with the
assistance of a McKenzie Friend, seeks permission to appeal from the decision
of the Employment Appeal Tribunal of 20 November 1998 dismissing her appeal
from a decision of an industrial tribunal.
- The background to the appeal is that on 17 January
1996 Mrs Williams made a complaint of sexual harassment and race
discrimination by various individuals at the tax office of the Inland Revenue
at which she worked in Croydon. On 17 April 1996 she made a further complaint
that two individuals together with the Board of Inland Revenue had committed
an act of race discrimination against her by failing properly to investigate a
grievance she had and by submitting a report which was not consistent with her
grievance. By a decision of 7 May 1996, Mr Booth, the chairman of the
industrial tribunal, sitting alone, held that it was not just and equitable to
allow Mrs Williams' application of 17 January 1996, which related to events in
1991 and 1992, to proceed. However, in relation to her second application, he
decided that there should be a preliminary hearing into the question (raised
by the Inland Revenue) whether Mrs Williams had failed to co-operate in an
inquiry into her allegations of sexual harassment to such an extent that she
had brought the dismissal of her complaints upon herself, with the consequence
that her complaints lacked any prospect of success and were therefore
scandalous, frivolous or vexatious.
- On 24 June 1996, an industrial tribunal chaired by
Mr Booth sitting with two other members, unanimously decided that the
application should proceed.
- However, the same industrial tribunal on 19
November 1996 unanimously decided to dismiss her application. The tribunal
came to the conclusion that Mrs Williams had not discharged the onus which was
upon her, that her complaints had been thoroughly and impartially and fairly
investigated internally and that there was no evidence from which the tribunal
could draw an inference of race discrimination.
- Mrs Williams had been employed by the Inland
Revenue at the tax office from 1985 until she took 9 months' maternity leave
in March 1994. It was this period to which her complaint related. Mr Booth had
also worked for the Inland Revenue from 1958 to 1961 in a junior position. In
her submissions to us, Mrs Williams emphasised that it was because of the
knowledge of the workings of the Revenue which Mr Booth displayed at the
hearings, that she and the McKenzie Friend challenged the chairman as to
whether he had been employed by the Revenue. Mr Booth then said that he had
worked for the Inland Revenue from 1958 to 1961 in a junior position. Mr Booth
says he invited any response from Mrs Williams but none was forthcoming.
- Having heard Mrs Williams' submissions which she
put forward very clearly and courteously, we did not consider it necessary to
call on the Respondent to address us. It was for this reason that we did not
invite submissions from Mrs Williams in reply.
- We entirely agree with the conclusion of the
Employment Appeal Tribunal that no right thinking person knowing of the
connection of Mr Booth with the Inland Revenue would feel that there was any
danger of bias in this case. The suggestion that there might be was fanciful.
In coming to that conclusion we take into account the fact that one of the
points made by Mrs Williams in her grounds of appeal is that there was also a
risk of prejudice resulting from the chairman projecting on to her case his
displeasure with her "counsel" (the person who was assisting her at the
hearing). It is fanciful to suggest that the chairman's employment by the
Revenue over 30 years ago could have affected his view. The chairman made
jocular remarks that her representative "had come to bash the Revenue" and
that "my colleagues and I would always be happy to hear cases involving the
Revenue" but these remarks do not suggest bias as Mrs Williams contends, and
she made no such suggestion at the time. The earlier decisions were
substantially in Mrs Williams' favour and the decision of the 19 November 1996
was unanimous.
- In Mrs Williams's case, having considered all her
grounds of appeal, we do not consider it right to grant her permission to
appeal.
R v Bristol Betting & Gaming Licensing Committee ex parte
O'Callaghan
- Mr O'Callaghan contends that on 10 September 1996
he placed two £25 "correct score accumulator" bets at a betting shop operated
by Coral Racing Limited ("Corals") in Cardiff. He expected, as a result of one
of those bets, to be paid £259,200. However Corals declared that bet to be
void because it had not been photographed. Since that time Mr O'Callaghan has
been conducting a campaign which is no doubt designed to place pressure on
Corals to meet what Mr O'Callaghan regards as their obligation.
- On 22 May 1997 a hearing was due to take place
before the Bristol Betting & Licensing Committee into the renewal of
bookmakers' permits. Mr O'Callaghan says that on the previous day his wife
wrote to the court asking for an adjournment because he was unfit to attend
for medical reasons. A medical certificate was enclosed. Despite a further
letter the adjournment was refused and Corals were granted their renewed
permit. An award of costs of £5,000 was made against Mr O'Callaghan.
- He initially tried to appeal to the crown court
but having been informed that he had no right to appeal he made an application
for judicial review. Leave was granted on 2 December 1997 to apply for
judicial review by Tucker J. The application should have been entered and
served on the respondents, namely the Bristol Betting & Gaming Licensing
Committee and Corals, within 14 days (O.53 r.5(5)), that is, by 16 December
1997. This did not happen, and it was not until 9 February 1999 that Miss
Jackson QC appeared on behalf of Mr O'Callaghan before Dyson J seeking to
extend the period of 14 days. The reasons for the delay were connected with
difficulties that Mr O'Callaghan was having in obtaining legal aid. There were
further difficulties with the solicitors whom he initially instructed and
subsequently he instructed another firm, his present solicitors, who still
have the conduct of the case.
- On 16 July 1998, prior to the hearing before
Dyson J, the Bristol Betting & Gaming Licensing Committee had extended
Corals' permits for three years. This was notwithstanding Mr O'Callaghan's
further application for an adjournment pending the outcome of an application
for judicial review.
- The fact that the permit had been extended
meant, as Dyson J pointed out in his judgment, that the reality of the
judicial review proceedings was a dispute as to the lawfulness of the decision
to order Mr O'Callaghan to pay £5,000. Having expressed sympathy for Mr
O'Callaghan's personal position, Dyson J decided that because of the modest
sum of money which was then involved, it would not be right to grant an
extension of time. He therefore refused the application and it is from that
decision that Mr O'Callaghan wishes to appeal.
- On 28 March 1999, The Sunday Times
published an article which stated that Dyson J was a director of Dyson
Properties Limited, a company which owned rented properties in Yorkshire,
Greater Manchester and Cheshire and that the tenants of the company included
Corals. Mr O'Callaghan, in an affidavit, says that he subsequently learnt that
Corals and its associated companies are tenants of a number of properties
owned by Dyson Properties Limited and Gown & Mantle Limited of which Dyson
J is also a director.
- It is now contended on behalf of Mr O'Callaghan
that if Dyson J had disclosed his connection with Corals, he would have
objected to his hearing the application. It is said that either Dyson J was
disqualified from hearing the application because it is a "Dimes
situation" or that it is a situation where there was a real danger of bias on
the part of Dyson J.
- In accordance with the normal procedure adopted
by the Court of Appeal when allegations are made against a judge, Dyson J was
informed of what was being relied on by Mr O'Callaghan. By letter to this
court of 28 June 1999 he confirmed that he had been a non-executive director
of Dyson Properties Limited since the late 1980's; that it is a family
property investment company, which was formed by his parents many years ago;
that it holds commercial properties in the North of England; that, apart from
himself, the current directors are his mother and brother; that all shares are
held by members of the family (which include the judge); that he is not
involved in the management of the company; that his role is limited to giving
occasional advice to his brother; and that Gown and Mantle Limited is a wholly
owned subsidiary of Dyson Properties Limited. (This last statement may not be
entirely accurate, because it appears that the judge may also hold shares in
this company). The judge adds that until he read the article in The Sunday
Times he "was not aware that Corals was one of the company's tenants" and
that the rent payable by Corals for the only shop of which it is a tenant of
the company represents slightly more than 4% of the total rent currently
receivable by the company.
- The Lord Chancellor gives guidance to judges on
their appointment. At the time of Dyson J's appointment, the guidance provided
that no judge should hold a commercial directorship. But the guide
added that:
"There is, however, normally no objection to a Judge holding
shares in commercial companies, or taking part in the management of a family
estate or farming his own land. Equally, there are some forms of
non-commercial directorships which a Judge may hold without
objection."
- The current guide of October 1998, is in similar
terms.
- It cannot be said that this is a case where the
strict principle of automatic disqualification laid down in Dimes and
ex parte Pinochet (No.2) applies. Miss Jackson submitted that if the
judicial review proceedings had continued they could have had a significant
effect upon Corals and in consequence adversely affected that company's
ability to meet its obligations to the Dyson family companies. We do not
agree. The judicial review proceedings by the time they came before Dyson J
were only concerned with the issue of £5,000 costs. It would be absurd to
suggest that recovery or non-recovery of this sum could affect Corals' ability
to pay the rent of its shop in Leeds. It was suggested that the court in the
judicial review proceedings could grant Mr O'Callaghan a declaration which
would be helpful in his dispute with Corals. However, we cannot see any basis
for such a declaration. Once Corals' betting permits had been renewed, the
judicial review proceedings could only have relevance with regard to costs. It
cannot be said that the judge had anything more than a nominal and indirect
interest because of his directorship and shares in the company. Such an
interest does not establish a bar to the judge sitting.
- If (as we hold) Mr O'Callaghan cannot succeed
under the strict rule of automatic disqualification, he certainly cannot
succeed under the real danger rule. There is absolutely no reason to doubt or
question the judge's statement that he was unaware that Corals were a tenant
of his family company. His role was non-executive and there is no reason why
he should know of the tenancy. Even if the judge did know, there could not be
any real danger of bias. The interest was so minimal, that no reasonable and
fair minded person sitting in court and knowing the relevant facts would have
considered there was a real as opposed to fanciful danger of a fair trial not
being possible. The order which the judge made, having regard to the gross
delay and the limited issue raised by the application, was well within his
discretion, which in our view he exercised correctly.
- We would dismiss the application for permission
to appeal.
Order: (Not part of approved judgment)
PTA 1999/6041/A3 and PTA 1999/6042 PTA 1999/6041/A3 and PTA 1999/6042PTA
1999/6041/A3 and PTA 1999/6042PTA 1999/6041/A3 and PTA 1999/6042
Leave to appeal refused with costs.
PTA 1999/6578/B2PTA 1999/6578/B2PTA 1999/6578/B2PTA 1999/6578/B2
Leave to appeal granted; appeal allowed; retrial ordered; costs of original
trial to be in the discretion of the judge who conducts the retrial; no order
as to costs in the appeal.
PTA 1999/6639/A1
Leave to appeal refused with costs.
PTA 1999/6093/C
Leave to appeal refused with costs; legal aid taxation.