| NATURAL JUSTICE — Bias — Apparent bias —Personal dealings between judge and firm of solicitors — Animosity towards firm expressed by judge — Partner in firm involved in contentious litigation as trustee — One month later application in trust case listed before judge — Judge refusing to recuse himself — Whether apparent bias
Howell and others v Lee-Millais
CA (Sir Anthony Clarke MR, Sir Igor Judge P and Buxton LJ): 4 July 2007
A judge should not hear a case when he had recently had personal, acrimonious dealings with solicitors involved in it, and in which a partner in the firm was a party, because of the risk of apparent bias.
The Court of Appeal so held in giving reasons for allowing, on 2 July 2007, an appeal by the claimants, Paul Jonathan Howell and others against the decision of Peter Smith J, earlier that day, refusing to recuse himself from hearing an application in a trust case in which the first claimant was a party and refusing permission to appeal.
SIR ANTHONY CLARKE MR said that the test for apparent bias was well established: see Porter v Magill [2002] 2 AC 357, In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 and AWG Group v Morrison [2006] 1 WLR 1163. The question was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The correct approach to the views of the judge was to be found in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451: a real danger of bias might arise if there were animosity between the judge and anyone involved in the case, and the greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection was raised, the weaker the objection would be. Between November 2006 and May 2007 there had been lengthy discussions between the judge and the firm’s head of litigation about the judge joining that firm of solicitors. Those discussions had come to an end. A series of e-mails showed that the judge felt disappointment and animosity towards the firm. It was understandable that the firm should be concerned when the Beddoe application (see In re Beddoe [1893] 1 Ch 547) was listed before the judge on 29 June 2007. In an ordinary Beddoe application the trustees would not pay the costs even if the action failed but in the present case an order was sought for the trustees to pay the costs personally. The claimant was a trustee and a partner in the firm, which was acting for the claimants. Leading counsel wrote to the judge asking him to recuse himself in the circumstances. The judge refused. At a hearing in private on 29 June the judge asked a number of questions of the head of litigation which read like a cross-examination. It was not appropriate for the judge to cross-examine as if the judge were fighting his own case. The authorities established that at most the judge should make a short statement on the record. The exchanges were extraordinary. The judge was wrong to give evidence of fact, and demonstrated animosity. The judge’s contribution to those exchanges was intemperate. His cross-examination of the head of litigation and his conduct would lead a fair-minded observer to conclude that the judge was biased against the firm and its partners. The judge ought to have recused himself. It was not a borderline case. There was no doubt that the test in the authorities was satisfied. Leading counsel behaved entirely appropriately throughout.
Sir Igor Judge P delivered a concurring judgment. Buxton LJ agreed.
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