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Biased Judgment or Baseless Accusation? Impartiality in the Courts

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About The Author

Keir Baker (Consulting Editor)

Keir is a Trainee Solicitor currently sitting in the Finance department at a major US law firm. A law graduate from Selwyn College, Cambridge University, his main areas of interest are Employment, Discrimination and Competition law. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

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© Rafa Esteve

A judge ... is easy to be had, but to get an impartial judge, is a thing so difficult.

Margaret Cavendish

Of all the qualities society expects judges to possess, perhaps the most fundamental is fairness. Members of the public want to know that, if they ever end up before a court, the judge presiding over their case will reach their decision based on the law and how it applies to the facts before them. They want their case to be untainted by the judge having a disposition towards, or an interest in, a certain outcome.

However, the judiciary is made up of human beings. And no human being can be totally free of biases and prejudices; no matter how far they try to bury them, a person’s subconscious will always win out. In this respect, the law has had to strike a balance: by weighing the need for judges to make fair and unbiased decisions against the acceptance that there is a need to accommodate the fallibilities of humanity.

The way in which the law seeks to fulfil this mission was tested last year. In Bubbles & Wine Ltd v Lusha [2018], the Court of Appeal were tasked with determining whether a judge at first instance should have recused himself following a private discussion with one of the barristers in his chambers. The Court of Appeal dismissed the appeal, holding that there was no apparent bias. This article examines this decision, arguing that while there are reasons to doubt the Court of Appeal’s conclusion, ultimately the reasoning is sound.

Bubbles & Wine Ltd v Lusha

The Facts

Bubbles & Wine Limited (B&W) and Reshat Lusha (L) were engaged in a dispute over unpaid invoices for building work that L had carried out. L brought a claim for the allegedly outstanding sum before the Central London County Court, where it was due to be heard before Deputy District Judge Wallis (the Judge) on 19 February 2015. In the trial before the Judge, L was to be represented by barrister Rahul Varma (V).

In July 2014, the Judge’s daughter had undertaken a mini-pupillage during which she had shadowed V. Before the trial began, V, very properly, alerted B&W’s barrister – Niraj Modha (M) – to this fact. They raised no objection.

At the end of the day-long trial, the Judge asked V to remain behind to discuss a personal matter. M agreed to this. In the Judge’s chambers, the Judge thanked V for their hospitality towards his daughter, about whom they spoke. At the end of the conversation, the Judge asked V to pass on comments to M – who V knew from previous cases – in order to aid both counsel in compiling a list of issues to be covered by written closing submissions. In these comments, the Judge noted that B&W’s counterclaim seemed weak and that L’s case had evidential gaps.

V passed on these comments to M in an email later that evening, while the Judge also sent an email alerting M to the conversation the next day. Concerned by the discrepancies between what V said and what was in these emails, M sought instructions from B&W. Subsequently, M emailed both the Judge and V requesting on behalf that the Judge recuse himself from the rest of the trial, because:

[T]he 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.

The judge refused to recuse himself. Giving his reasons for this in his judgment on the substantive claim, he argued that it would not be proportionate, in accordance with the overriding objective, nor cost-effective to arrange a rehearing of the case. He also explained that his conversation with V:

[W]as entirely social, save for [his] attempt to be helpful in preparing the closing submissions… It took no more than a few seconds [and] I am satisfied that my substantive decision shows that the issues have been fully explored and properly decided and the result is not susceptible to challenge.

Subsequent Events

B&W appealed the Judge’s substantive decision on the case. Though there were several grounds for their appeal, their main argument was that the Judge should have recused himself by reason of actual or apparent bias. On 2 June 2016, HHJ Freedland QC dismissed the appeal in part, dismissing B&W’s arguments based on bias in their entirety.

B&W, therefore, brought a further appeal to the Court of Appeal, in which their sole ground was that the Judge should have recused himself on the grounds of apparent bias. The Court of Appeal – comprising Flaux and Leggatt LJJ – unanimously dismissed B&W’s appeal.

The Law on Apparent Bias

Writing the Court of Appeal’s sole judgment, Leggatt LJ gave a concise overview of the law of apparent bias. He noted that the authorities in this area have at their root a desire to uphold the famous proclamation of Lord Hewart CJ in R v Sussex Justices ex parte McCarthy [1924] 1 KB 256 at 259 – namely, that it is:

[O]f fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.... nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.

In this respect, the courts have developed a two-stage test, as outlined by the House of Lords in Porter v Magill [2001]:

  1. Firstly, all the circumstances which have a bearing on the suggestion that the judge was biased must be pulled together.
  2. Then, it is asked whether these circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker in question was biased.

As the Court of Appeal confirmed in Secretary of State for the Home Department v AF (No. 2) [2008], bias in this context means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case.

The characteristics of the fair-minded and informed observer are intended to reflect a legal everyman. As Lord Steyn explained in Lawal v Northern Spirit Ltd [2003], they are not unduly sensitive, suspicious or complacent. Furthermore, as Lord Hope observed in Helow v Secretary of State for the Home Department [2008], they must not be confused with the person raising the complaint of apparent bias to ensure a measure of detachment.

If this two-part test for apparent bias is satisfied, the judge is automatically disqualified from hearing the case and considerations of inconvenience, cost and delay are irrelevant. However, if the test is not satisfied, the Resolution Chemicals [2013] case has confirmed that the objection must fail, even if that leaves the applicant dissatisfied and bearing a sense that justice will not or may not be done.

The Court of Appeal’s Judgment

The Court of Appeal in Bubbles & Wine Ltd v Lusha dismissed the appeal, holding that a fair-minded and reasonable observer would not conclude that there was a real possibility that the Judge was biased. This did not, however, preclude Leggatt LJ from condemning aspects of the Judge’s conduct. The judgment features this searing criticism:

In this case, the circuit judge, while rejecting the complaint of apparent bias, felt bound to record that what the [Judge] did was "far from ideal" and "should be discouraged". I regret to say that this was, in my view, far too generous an assessment.

Still, it was held that there was nothing in the facts that would leave the test for apparent bias satisfied. Leggatt LJ carefully went through the list of various factors that might be argued to indicate bias and dismissed them. For example, he concluded that the mini-pupillage undertaken by the Judge’s daughter could not sensibly have been thought to give rise to any risk of bias, that his instructions intended to assist both parties in preparing their closing submissions and his request that V pass on the comments to M demonstrated that the Judge harboured no intention to give one party a privileged insight into his thinking.

The Court of Appeal placed heavy weight on the fact that the Judge’s comments had been passed onto M by both V and the Judge himself. This, Leggatt LJ argued, distinguished the case from the Employment Appeal Tribunal’s decision in Gill v Humanware Europe Ltd [2010] in which it was held that the test for apparent bias was satisfied when an employment judge received submissions from and made comments to the representative of one party which were not revealed to the other party.

Analysis

The Court of Appeal’s concise and seemingly straightforward application of the law of apparent bias masks a decision that is perhaps a little more controversial than it first appears. Certainly, it is not an outlandish suggestion to say that red flags could arise in the minds of the public if they were told that a judge had a private conversation about a case with the lawyers of just one party.

Indeed, if this had occurred in relation to a high-profile case, it is easy to see how there could be a serious outcry, particularly in the age of increasing partisanship, fake news and social media. With lots of stories distilled into 280 characters on Twitter – the main victims of this being nuance and, often, the full factual picture of a story – the words of Lord Steyn from Lawal v Northern Spirit Ltd [2003] ring true over a decade later:

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.

That said, the decision seems a sound one. The Judge’s behaviour was certainly, in the words of Leggatt LJ, ‘inept’ and ‘misguided’, but the removal of a judge from a case is a drastic step that should require something more overtly partisan – such as the infamous rant of Peter Smith J over his lost luggage – or otherwise egregious, like in the Scottish case of Highlands & Islands Authority Ltd v Shetland Islands Council [2012] in which an adjudicator ‘phoned his friend’ for advice.

These cases highlight the level of outrageous behaviour expected to be reached before a judge will be removed on the grounds of actual or potential bias - as such, regard must be had to the fact that the Judge in the present case took steps to try and emphasise his neutrality. As mentioned afore, judges are still human: mistakes and questionable behaviour will inevitably occur in some cases, but - in the interests of cost and time - it is arguably only justifiable for action to be taken in cases of truly unacceptable behaviour.

Conclusion

It is reasonable to conclude that there are some 'purist' who may have considered that the Judge’s actions are cause for concern. However, as the decision of the Court of Appeal demonstrates, the law must be careful to ensure to carefully police when and whether such concern is a sufficient basis for a finding of apparent bias. 

This is particularly so in the age of social media, where it may appear that the public has become more reactionary and outraged over occurrences in the political and legal world. Thus, the Court of Appeal were correct to recognise that the fair-minded and informed observer – not the outraged Twitter user – would not have concluded that there was a real possibility that the judge was biased.

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Tagged: Courts, Human Rights

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