Summary

Considers the basis on which judges could or should disqualify themselves from sitting on grounds of bias and the issues concerning judges who were solicitors, authors and non-executive directors of family companies. The court would regard as undesirable any extension 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 was based.

Facts

Applications for permission to appeal raising common questions concerning disqualification of judges (whether judge, lay justice or juror) on grounds of bias. The court delivered a judgment on the general principles applicable and then considered the applications individually. The Locabail application raised issues concerning solicitor judges and the Timmins application raised issues concerning judges who were also legal authors.

Held

General

(1) The court distinguished the two rules relating to disqualification identified in the authorities. (i) Where the judge was shown to have an interest in the outcome of the case which he had to decide or had decided (Dimes v The Proprietors of the Grand Junction Canal (1852) 3 HL Cas 759) he would be automatically disqualified. The question in this category was whether the outcome of the cause before the judge could realistically and directly affect the judge's interest. In R v Bow Street Magistrates, ex parte Pinochet (No.2) (1999) 2 WLR 272 the House of Lords made plain that the rule extended to a limited class of non-financial interests. 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, the court would regard as undesirable any extension 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 was based. It was possible for a party to waive his right to object to the judge hearing or continuing to hear the case. (ii) The second rule provided for the disqualification of a judge and the setting aside of a decision, if on examination of all the relevant circumstances, the court concluded that there was a real danger (or possibility) of bias (this test was settled in R v Gough (1993) 2 WLR 883). (2) When applying the test of real danger or possibility (as opposed to the test of automatic disqualification), it would very often be appropriate to enquire whether the judge knew of the matter relied on as appearing to undermine his impartiality, because if it was shown that he did not know of it the danger of its having influenced his judgment was eliminated and the appearance of possible bias was dispelled. (3) The position of solicitors who were judges was different to that of barristers in that, as a partner, the solicitor was legally responsible for the acts of his partners and owed duties to clients of the firm for whom he might never have acted and know nothing of. A solicitor judge should, before embarking on the trial of any assigned civil case, conduct a careful conflict search within the firm of which he was a partner. When some such association comes to light in the course of a trial properly embarked on, the association should be disclosed and addressed in the light of the test in R v Gough (supra). (4) In any case giving rise to automatic disqualification, the judge should rescue himself from the case before any objection was raised, or if for solid reasons the judge felt personally embarrassed in hearing the case. (5) It was highly desirable that the judge should stand down at the earliest possible stage. (6) If in any other case, the judge became aware of any matter which could arguably be said to give rise to a real danger of bias, it was generally desirable that disclosure should be made to the parties in advance of the hearing. If objection was made, it was the duty of the judge to consider the objection and exercise his judgment on it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. (7) It would be dangerous and futile to attempt to define or list the factors which might or might not give rise to a real danger of bias. Everything would depend on the facts, which might include the nature of the issue to be decided. (8) Waiver did not raise special problems in this context. What disclosure was appropriate depended in large measure on the stage that the matter had reached.

Locabail

The facts and decision in the Locabail applications are set out below. This hearing dealt purely with the appeal on the bias point, leaving aside other grounds of appeal.

HELD: (1) This was not a case to which the Dimes (supra) principle of automatic disqualification applied. The R v Gough (supra) test must be applied to the actual evidence before the court. (2) It was to be inferred from the judgment that the deputy judge conducted a conflict search within his firm in respect of the parties, but not in respect of the appellant's husband. (3) Accepting that the judge did not know of the connection, there could be no real danger of bias or any real apprehension or likelihood of bias, if the judge did not know of the facts that were relied on as giving rise to the conflict of interest. (4) If a conflict prevented a solicitor from acting as a party to a litigation, it was submitted that, generally speaking the conflict would disqualify the solicitor from sitting as a deputy judge in that litigation. That submission was too inflexible and everything depended on the circumstances, particularly in respect of the timing of the discovery of the conflict and the wishes of the parties. (5) 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. (6) It was not open to the appellant to wait and see how her case turned out before pursuing her complaint of bias. She had waived her right to object.

Permission to appeal refused.

Timmins

It was alleged that there was a real danger of bias on the part of the recorder trying this personal injury case. The defendant relied on certain articles written by Mr Recorder Braithwaite, which it was submitted indicated that there was 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 were the real defendants in this case. It was further argued that the findings which the judge made were so favourable to the claimant that they provided support for this allegation of bias. The recorder was a relatively prolific writer in the personal injury field, inter alia, being a consultant editor of "Kemp and Kemp".

HELD: (1) It was not inappropriate for a judge to write in publications of the class to which the recorder contributed, and such contributions could further rather than hinder the administration of justice. However, the specialist judge must be circumspect in the language used and the tone in which he expressed himself. It was always inappropriate for a judge to use intemperate language about subjects on which he had adjudicated or would have to adjudicate. (2) On the facts, there was a real danger, taking a broad common sense approach, that a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might unconsciously have leant in favour of the claimant and against the defendant. A lay observer with knowledge of the facts could not have excluded that possibility.

Permission to appeal granted. Appeal allowed and retrial ordered.

Williams

The appellant sought permission to appeal from the decision of the EAT dismissing her appeal from a decision of an industrial tribunal. She had made complaints of sexual harassment and race discrimination by various individuals she worked with at the Inland Revenue from 1985 to 1994. The chairman of the industrial tribunal had worked for the Inland Revenue from 1958 to 1961. The appellant challenged the chairman as to whether he had worked for the Inland Revenue and he then revealed his previous employment.

HELD: (1) The EAT was correct to conclude 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 the case. The suggestion that there might be was fanciful.

Permission to appeal refused.

O'Callaghan

The appellant had been conducting a campaign against Coral Racing Ltd who had refused to pay out on a substantial bet he had placed. On 22 May 1997 a hearing was due to take place before the Bristol Betting & Gaming Licensing Committee into the renewal of bookmakers' permits. The appellant's wife wrote to the court asking for an adjournment because he was unfit to attend for medical reasons, enclosing a medical certificate. The adjournment was refused and Corals were granted their renewed permit. An award of costs of £5,000 was made against him. The appellant sought judicial review. Leave was granted and the application should have been entered and served on the respondents by 16 December 1997. This did not happen and it was not until 9 February 1999 that Dyson J heard an application to extend the 14-day period. In the meantime, the Committee had extended Corals' permits for three years. Dyson J refused the extension of time. The appellant then discovered that Dyson J was a director of Dyson Properties Ltd, and tenants of the company included Corals. Dyson J confirmed to the Court of Appeal that he was a non-executive director of Dyson Properties Ltd; that it was a family property investment company run by other members of the family and that his role within it was strictly limited. He was not aware that Corals was one of the company's tenants.

HELD: (1) The strict principle of automatic disqualification laid down in Dimes and ex parte Pinochet (No.2) did not apply. The judicial review proceedings by the time they came before Dyson J were only concerned with the issue of £5,000 costs. The judge had no more than a nominal and indirect interest. (2) There could not be any real danger of bias. The interest was minimal.

Permission to appeal refused.