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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bubbles & Wine Ltd v Lusha  EWCA Civ 468 (14 March 2018)
Cite as:  EWCA Civ 468
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ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE FREELAND QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEGGATT
| BUBBLES & WINE LIMITED
|- and -
Ms Hannah Glover (instructed by Fieldfisher LLP) for the Respondent
Hearing date: 22 February 2018
Crown Copyright ©
LORD JUSTICE LEGGATT:
The relevant circumstances
"As it happens, I do not think that the judge has said anything that might not have been reasonably anticipated by either of the parties following the evidence today. I think it probably does help to narrow down some issues "
"As you know, I spoke to Mr Varma after Court yesterday evening the subject of our discussion was my daughter's mini-pupillage at Lamb Chambers last summer in which he played a part. I did, however, take the opportunity also to mention an aspect of the case and wish you to be aware of this.
As I explained to him, I would have done so in your presence had Mr Faure not remained in the room, but as you both have a considerable number of commitments in the next fortnight in addition to the unexpected burden of having to produce written final submissions, I felt very exceptionally, I add it might be helpful to share my immediate reaction to one aspect of the case. I stress it is no more than that. It is that regardless of the questions of causation, remoteness, etc., it did seem to me that the counterclaim suffers from an absence of evidence.
You may, of course, disagree, and I am not expecting you now to comment. I emphasise that no decision has been reached by me about the point and I assure you I shall dispassionately consider all the contentions and evidence when I have the final submissions."
"I have been giving further thought to our recent exchange of messages. It is, of course, fundamental that the Court is, and objectively is seen to be, impartial. For my part, I do not consider this principle has been compromised. However, after considering what I am about to state it has felt it has been, I fear I shall have to recuse myself. It would be better in those circumstances, I feel, to grasp the nettle now and set in motion obtaining a new trial date.
I have explained why I thought it would be helpful for you to know my initial concern and this was conveyed to you both by me and, at my request, Mr Varma. Indeed, B&W have benefited from knowing this so it can be dealt with in submissions. It may assist you to know I had like concerns with aspects of Mr Lusha's evidence. This would be seen from the list of points I would propose to send Mr Varma and you which, without in any way restricting what you would otherwise say, could (if wished) be dealt with in the submissions. It would, I think, demonstrate, if indeed that is necessary, that I am far from having made up my mind on either party's claim.
I should be grateful for your and Mr Varma's thoughts at your convenience."
"However, if after considering what I am about to state it has felt it has been, I fear I shall have to recuse myself."
That inference seems to me incontrovertible. The trial judge had plainly not decided that he would have to recuse himself. Had that been his view, he would not have asked counsel for their thoughts on matters which, as the trial judge considered, demonstrated his impartiality.
"the private conversation between yourself and Mr Varma, which was well-intentioned, trespassed into comment on the ongoing case. This was not appropriate, given that the comment was adverse, not in open court, and in the presence of only one party's legal representative."
"Our conversation was entirely social, save for this; I was concerned that Mr Modha should be made aware, as quickly as possible given his professional commitments, of my concern about the evidential weaknesses. I knew I would not be able to communicate with him until late that night. In an attempt to be helpful in preparing the closing submissions, I told Mr Varma that my initial view without deciding was that the counterclaims seemed weak and that there were also evidential gaps in Mr Lusha's case. I asked him to pass this on to Mr Modha urgently, which he agreed to do. I recall I said I would do the same myself the following morning, which in fact I did. I did not enlarge on what I had said or ask Mr Varma to comment, and he did not do so. It took no more than a few seconds."
The trial judge rejected any suggestion that any bias, whether actual or apparent, was manifested by or could be implied from his remarks. He expressed the view that his remarks were no more than repetition of what would already have been apparent to counsel. His explanation of why he had not made the comments in open court at the end of the hearing was that Mr Faure had been present in court and, "this is the irony of ironies, I did not wish him to conclude I had already made up my mind, as indeed I had not". He accepted that, in retrospect, "it would have been better to have taken the risk of possibly upsetting Mr Faure". The trial judge further stated that, while he appreciated that the consequences of a recusal could not themselves determine whether one should take place, the overriding objective and proportionality also had to be borne in mind and the cost of a rehearing would be wholly disproportionate. He also thought that, as the evidence had already been rehearsed, it would be extremely difficult, if not impossible, for a fair trial to take place. He concluded:
"There must be finality of resolving disputes and in this regard I am, I trust not immodestly, satisfied that my substantive decision shows that the issues have been fully explored and properly decided and the result is not susceptible to challenge."
The law on apparent bias
(1) The fair-minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent: Lawal v Northern Spirit Ltd  UKHL 35;  ICR 856, para 14 (Lord Steyn).
(2) The facts and context are critical, with each case turning on "an intense focus on the essential facts of the case": Helow v Secretary of State for the Home Department  UKHL 62;  1 WLR 2416, para 2 (Lord Hope).
(3) If the test of apparent bias is satisfied, the judge is automatically disqualified from hearing the case and considerations of inconvenience, cost and delay are irrelevant: Man O' War Station Ltd v Auckland City Council (formerly Waiheke County Council)  UKPC 28, para 11 (Lord Steyn).
The appellant's case
"What the public was content to accept many years ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago."
The trial judge's conduct
Was there apparent bias?
LORD JUSTICE FLAUX: