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Q8: Bias
FTT judge erring on side of granting permission where own impartiality questioned
“Although I have done my best to put myself into the shoes and mind of the fair-minded and informed person and to come to an objective decision, I cannot say that I must, in attempting that exercise, have been totally objective. It is possible that others who are more detached from the decision and the allegations could come to a different view about what the fair-minded and informed person would find…So I cannot say that Dr Milton’s arguments on bias, appearance of bias and predetermination are “clearly unfounded” (said in R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448 to be that same as “no realistic prospect of success”) so I give leave on the sole ground that the Tribunal was or appeared to be biased and had predetermined the outcome of the decision in relation to s 144 ITEPA.” (Couldwell Concrete Flooring Ltd v. HMRC [2017] UKFTT 85 (TC), §§121 - 122).
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Actual bias
“If a tribunal has allowed some extraneous consideration to influence its decision some factor which would distort its judgment -so that the tribunal leaned against a party in making factual judgments or came to the case with a closed mind, that is bias.” (Wright v. HMRC [2013] UKUT 0481 (TCC), §57).
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Three types of actual bias
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There are three types of actual bias:
(1) Decision maker has a personal interest in the outcome of the case (e.g. a pecuniary interest).
(2) Decision maker comes to the case with a fixed predisposition.
(3) Decision maker fails to grapple with the issues objectively.
“It is not that he has come to the trial with any preconceived prejudice or predilection or bias: but that over the course of it he has demonstrated an inability to grapple objectively with the issues of fact and law presented to him. In the result the trial was unfair.” (Co-operative Group (CWS) Ltd. v. ICL [2003] EWCA Civ 1955, §84).
“While the law on what constitutes apparent bias is well-settled the position with regard to actual bias is less so. There are potentially two types of case. The first is where the decision-maker has a direct pecuniary, proprietary or personal interest in the outcome of the case. The second is where the decision-maker is shown to have been directly influenced by a fixed predisposition or predilection. In the case of a fixed predisposition or predilection it will be for reasons unconnected with the merits of the case, and involves a closed mind, which is not susceptible to any reasonable persuasion, see for example, R v. Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 , Simon Brown LJ at 151 and Flaherty v. National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 at [28].” (Jackson v. Thompsons Solicitors (a Firm) [2015] EWHC 218 (QB), §14).
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Predisposition alone is not actual bias
“It is a human characteristic that people have predilections, beliefs and sympathies, and judges and tribunals are no exception. The fact that a Judge or Tribunal may hold certain pre-conceived views does not by itself constitute actual bias unless it is such as to render them immune to contrary argument. The crucial distinction is between a predisposition towards a particular outcome and a predetermination of the outcome. The former is consistent with a preparedness to consider and weigh factors in reaching the final decision; the latter involved a mind that is closed to the consideration and weighing of relevant factors; see National Assembly for Wales v. Condron [2006] EWCA Civ 1573 , Richards L.J at [43], (with whom Ward and Wall L.JJ agreed) and De Smith's Judicial Review , 7th Ed (2013). §10–058.” (Jackson v. Thompsons Solicitors (a Firm) [2015] EWHC 218 (QB), §15).
Finding of actual bias based on predisposition rare
“The courts have shown themselves reluctant to investigate allegations of actual bias and there is authority to the effect that submissions of actual bias should not be made, see for example R. v. Gough [1993] A.C. 646 , see Lord Goff at 659D-H and Lord Woolf at 672G-673B. There are three reasons why the courts have seldom embarked on such inquiries. First, there are obvious difficulties in exploring the actual state of mind of a judge (for example, a judge is not compellable as a witness in relation to his own decision). Secondly, bias can operate in an insidious way so that the person alleged to be biased may be unconscious of it. Thirdly, it may be very difficult to establish…It is to avoid some of these difficulties that the Courts have developed the test of apparent bias, which avoids the difficulties of proof, is easier to demonstrate and will usually be sufficient.” (Jackson v. Thompsons Solicitors (a Firm) [2015] EWHC 218 (QB), §§16…17).
Relevant factors
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Consistently preferring the evidence and submissions of one side is not sufficient
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“Our conclusion is not predicated on the considerations that the judge has shown a consistent preference to rely on the evidence of ICL while finding the principal witnesses of CWS to have lied or to have acted in bad faith; or that he has consistently decided hotly disputed points of fact and law against CWS. It must often be the melancholy duty of a judge to conclude that the truth, and the legal merits too, lie on only one side of the dispute; and to say so in necessarily clear and strong terms.” (Co-operative Group (CWS) Ltd. v. ICL [2003] EWCA Civ 1955, §85).
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Viewing the whole case through unjustified findings of bad faith
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“From this analysis we think one can deduce that CWS' witnesses were repeatedly not believed, not so much because the documents or probabilities were inherently against them, but because the judge was always viewing their evidence through the prism of CWS' malevolence. The findings of false evidence and/or bad faith against CWS' witnesses standing by themselves appear to be disproportionate, but viewed in the round are explicable on the basis that it was the judge's view that CWS was conducting the whole project on a basis of bad faith.” (Co-operative Group (CWS) Ltd. v. ICL [2003] EWCA Civ 1955, §81).
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Unnecessary findings
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“Since it was, on his own view, unnecessary for him to make such a finding, why did he do so?...One possibility is that it was a way for him to emphasise how completely divorced from commercial reality CWS' approach to this project was. Another possibility is that it buttressed his summary view that the misrepresentation claim carried the dispute no further than CWS' claim in contract. However, either possibility undermines our confidence that the judge was dealing with this claim with the necessary objectivity.” (Co-operative Group (CWS) Ltd. v. ICL [2003] EWCA Civ 1955, §82).
Rejecting common ground
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“It is impossible to know for certain why the judge adopted that position to the question of contract, but again it is difficult not to feel considerable concern that his underlying attitude to CWS' motivation, namely that it was more interested in destroying rather than in continuing its relationship with ICL, again affected his objectivity. Otherwise it is difficult to understand why he dealt so abruptly with CWS' case in contract, describing it at one point as “from a legal point of view, doomed from the start” (at para. 53). It is indeed hard to understand why an admitted alternative case was doomed from the start.” (Co-operative Group (CWS) Ltd. v. ICL [2003] EWCA Civ 1955, §83).
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Court bound to rule on submission of bias
“Nevertheless, and despite these difficulties, when an allegation of actual bias is made the court cannot avoid adjudicating on it and is bound to undertake, what has been described in a different context, as the ‘duty of decision’, see R v. Derek William Bentley (deceased) [2001] 1 Cr App R p.307 at [68].” (Jackson v. Thompsons Solicitors (a Firm) [2015] EWHC 218 (QB), §16).
Apparent bias: objective test
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” (Porter v. Magill [2002] 2 AC 357, §103, Lord Hope).
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"The court should ask itself whether, having regard to [the relevant] 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 ..." (R v. Gough [1993] AC 646, §52).
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Judge’s denial of bias is not relevant
“…it is important to stress that the test to be applied is an objective one. The fact that the tribunal were amazed at the allegation of bias…cannot be determinative for the appellate tribunal which must conduct an objective appraisal of all the material facts.” (Southwark London BC v. Jiminez [2003] EWCA Civ 502, §26);
“Although it is right to note the denial, it does not of course mean that there was in fact no bias or appearance of bias” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §31, Proudman J);
“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 considerations may have influenced the decision.” (Locabail UK Ltd v. Bayfield Properties Ltd [2000] QB 451 (CA), §19).
Judge’s explanation as to awareness of source of potential bias to be taken into account
“Where [an explanation of the material circumstances is proferred by the judge], the reviewing court does not have to rule whether or not the explanation should be accepted or rejected; rather, it has to rule whether or not the observer would consider that there was a real danger of bias notwithstanding the explanation advanced” (Howell v. Lees-Millais [2007] EWCA Civ 720, §7)
“Often the court will have no hesitation in accepting the reliability of [a statement from the judge]; 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.” (Locabail UK Ltd v. Bayfield Properties Ltd [2000] QB 451 (CA), §19).
No question of cross-examining the judge
“There can, however, be no question of cross-examining or seeking disclosure from the judge.” (Locabail UK Ltd v. Bayfield Properties Ltd [2000] QB 451 (CA), §19).
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The fair minded and informed observer
Assumed to be present throughout
“The observer in the present case must be assumed to have been present throughout the hearing and to be aware that on 12 March 1999 the evidence was very largely completed but with submissions yet to be heard.” (Southwark London BC v. Jiminez [2003] EWCA Civ 502, §26).
Informed of tribunal practice and procedure
“The observer must also be taken to have informed himself of the procedure and practice of tribunals in this jurisdiction.” (Southwark London BC v. Jiminez [2003] EWCA Civ 502, §26).
Aware of language used in particular types of case
“A fair-minded and informed observer, aware of the types of questions asked by judges in tax disputes and the language used in such cases, would not have queried the Judge’s question…” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §76, Proudman J – MTIC case).
Aware that judges are trained to keep an open mind
“A fair-minded observer would know, however, that judges are trained to have an open mind and that judges frequently do change their minds during the course of any hearing.” (El-Farargy v. El-Farargy [2007] EWWCA Civ 1149, §26, Ward LJ).
“I make the preliminary observation that a judge (and the fair-minded informed observer) is well aware that a case may be turned on its head when the tribunal has heard evidence from the defence and therefore any views expressed before such evidence can only be provisional.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §139, Proudman J).
Not unduly sensitive
“I have given most anxious thought to whether or not I am giving sufficient credit for the robustness of the phlegmatic fair-minded observer, a feature of whose character is not to show undue sensitivity.” (El-Farargy v. El-Farargy [2007] EWCA Civ 1149, §26, Ward LJ in respect of what “will inevitably be perceived to be racially offensive jokes”, on the facts, real possibility of bias found).
Considering factors
Factors alleged to indicate bias should be considered individually and in combination
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“In my view, none of these comments, by themselves, would meet the test for apparent bias. There is however another issue, namely whether the comments would have produced a different result in the mind of the fair-minded and informed observer when taken as a whole.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §157, Proudman J);
Factors must be read in context
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“They must be placed in context: they constitute a very small selection from over 1,400 pages of transcript. These four short passages (indeed all the passages complained of taken together) are insufficient to infect the whole hearing. The appellants have attempted to isolate small points in the evidence and construct a case around them…” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §159, Proudman J).
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Connection to a party/representative
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- Close connection required
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“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 textbooks, 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 (see K.F.T.C.I.C. v. Icori Estero S.p.A. (Court of Appeal of Paris, 28 June 1991, International Arbitration Report, vol. 6, 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 C.L.R. 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.” (Locabail (UK) Ltd v. Bayfield Properties Ltd [1999] EWCA Civ 3004, §25)
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- Wing member sat with opposing counsel as part-time judge (risk of bias)
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“The observer is likely to approach the matter on the basis that the lay members look to the judge for guidance on the law, and can be expected to develop a fairly close relationship of trust and confidence with the judge. The observer may also be credited with knowledge that a Recorder, who in a criminal case has sat with jurors, may not subsequently appear as counsel in a case in which one or more of those jurors serve. Despite the differences between the two cases, the observer is likely to attach some relevance to the analogy because in both cases the judge gives guidance on the law to lay men. But the observer is likely to regard the practice forbidding part-time judges in the Employment Tribunal from appearing as counsel before an Employment Tribunal which includes lay members with whom they had previously sat as very much in point… Like Pill LJ in the Court of Appeal we consider that the present practice in the EAT tends to undermine public confidence in the system. It should be discontinued. It follows that the present practice in the EAT should be assimilated to that in the Employment Tribunal by introducing a restriction on part-time judges appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat.” (Lawal v. Northern Spirit Ltd [2003] UKHL 35, §§21…23)
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- No reason to think that judge would allow ethics to be overriden by connection to Counsel in case
"Finally I turn to ground (iii) and the main substance of the appellant's case. I would dismiss the appeal for the following reasons, which essentially reflect the reasons given by the judge below:
i) The notional fair-minded and informed observer would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges and would understand that those standards are part of a legal culture in which ethical behaviour is expected and high ethical standards are achieved, reinforced by fears of severe criticism by peers and potential disciplinary action if they are departed from: Taylor v Lawrence [2001] EWCA Civ 119, [33]-[36]; Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528, [61]-[63]. These aspects of the legal culture of the Bench and legal professionals are not undermined by the fact that some litigation is now funded by means of CFAs;
ii) The notional fair-minded and informed observer would understand that a part-time judge's approach to the case she is trying and to her relationships with other professionals will be governed by these professional standards. There is no reason to think that a judge would allow her professional training and ethics to be overridden by a concern not to upset a junior counsel she is leading in other litigation. Moreover, the judge would know that the junior counsel would himself understand that she is bound by strict professional standards, and hence would have no expectation that she would do anything other than act in accordance with them. So the judge would not expect any disgruntlement or difficulty to arise in her relationship with the junior counsel even if she makes a decision adverse to him in the case she is trying. Accordingly, the idea that the judge would adjust her behaviour as judge to avoid upsetting the junior counsel is far-fetched indeed. The notional fair-minded and informed observer would not consider that there was any genuine possibility of this occurring;
iii) There is a danger in cases of this kind of multiplying reference to authority in the hope of finding analogies on which to found arguments one way or the other, and we were presented with a plethora of authorities to address what is really quite a simple matter. However, it may be observed that a number of authorities indicate strongly that it could not be said that there is any objectionable connection between the judge and counsel for the respondent sister in this case. In The Gypsy Council v United Kingdom (2002) 35 EHRR CD 96 the European Court of Human Rights dismissed as manifestly ill-founded an argument that Article 6 (right to a fair trial) was infringed on grounds of appearance of bias where a part-time deputy judge in a case involving gypsies on one side and a public authority on the other was a barrister in practice (David Pannick QC) who had been instructed as counsel for the government in numerous cases before the Court of Human Rights involving gypsies, in which he had argued that public authorities had not infringed the rights of gypsies: p. 101. The deputy judge in that case remained in practice and might hope to be so instructed by the government again, but still it was clear that no appearance of bias arose. In Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113, Rix J dismissed an application to remove an arbitrator on grounds that "circumstances exist that give rise to justifiable doubts as to his impartiality" (section 24 of the Arbitration Act 1996) where the arbitrator was a QC practising in the same chambers as counsel for one of the parties in the arbitration. It is true that the judge directed himself by reference to the then current standard for assessing an appearance of bias set out in R v Gough [1993] AC 646, which was adjusted in Porter v Magill to bring it into line with the test under Article 6, but I do not think that is significant for the analysis in the case. The position is underlined by Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242; [2007] 1 WLR 370. In that case, a personal injury claim was tried by a practising barrister and part-time judge sitting as a recorder, who was the head of the chambers to which both counsel for the claimant and counsel for the defendant belonged and who had also acted for the defendant or associated companies in the past and might do so in the future. This court rejected the suggestion that an appearance of bias arose by reason of the connection between the recorder and counsel through being members of the same chambers: [17]-[19]; it was only because the recorder regarded himself as having an on-going barrister-client relationship with the defendant that this court held he should have recused himself. Similarly, in Resolution Chemicals at [46] this court referred to the idea that the reasoning in Lawal "would preclude a judge from hearing a case in which his former pupil master or regular instructing solicitors were acting for one of the parties, or a deputy High Court judge from ever hearing a case in which a more senior member of his or her chambers was acting for one of the parties" as something which it regarded as obviously untenable;
iv) As both the Taylor v Lawrence judgments and these other decisions indicate, relationships between members of the Bar, or between members of the Bar and their clients, can be much closer than that between the deputy judge and counsel for the respondent in the present case, yet because the relationships are mediated through known professional standards no appearance of bias arises." (Watts v. Watts [2015] EWCA Civ 1297, Sales LJ)
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- Judge being from same chambers as counsel not sufficient
"The question in this application brought under the Arbitration Act 1996 is whether a barrister who has been appointed an arbitrator by one party to the arbitration should be removed by the court on the ground that another barrister from the same chambers has been instructed in the arbitration by the appointing party. Put in the terms of section 24(1)(a) of the Act, the question is whether -
"circumstances exist that give rise to justifiable doubts as to his impartiality".
[...]
Mr Bolkenhol's third point is that familiarity may colour Mr Burnton's judgment. On the particular facts of this case, it turns out that Mr Burnton and Mr Sullivan hardly know one another. That said, however, it remains the case that in any given specialty the bar's numbers, even in London, are not so great as to make it unlikely that counsel, and particularly senior and experienced counsel such as may well be appointed to an arbitral tribunal on the one hand or to represent a party in an important arbitration on the other, do not know each other well. But that is as much a matter of the daily routine of practice over many years as a reflection of the sharing of tenure in the same chambers. In any event, one barrister may be on better terms with a barrister in other chambers than with anyone in his own set. In a very true sense, however, the title of "learned friend" with which counsel refer to one another in court is more than an empty courtesy and represents the long established tradition of the bar. That has never been thought of as constituting a conflict of interest or as justifying doubts as to a tribunal's impartiality." (Re Laker Airways Incorporated [1999] EWHC B3(Comm), Rix J)
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- Judge has on-going client connection with a party to the case (should recuse)
"[20] In Metropolitan Properties v Lannon [1969] 1 QB 577 at p. 600 Lord Denning stated a proposition which has never been challenged:
"No man can be an advocate for or against a party in one proceeding, and at the same time sit as a judge of that party in another proceeding. Everyone would agree that a judge, or a barrister or solicitor (when he sits ad hoc as a member of a tribunal) should not sit on a case to which a near relative or close friend is a party. So also a barrister or solicitor should not sit on a case to which one of his clients is a party. Nor on a case where he is already acting against one of the parties. Inevitably people would think he would be biased. "
[21] The Recorder's attitude was that his professional connection to KCF was a matter that Mr Smith could waive and that he would not have started the case unless satisfied that Mr Smith was aware of the connection and had no objection to his trying the case. Mr Nolan advised Mr Smith that he was entitled, if he wished, to apply for an adjournment so that the action could be tried before a different judge. Mr Thanki, on behalf of the Bar Council, has submitted that "Mr Smith would have been entitled, had he chosen to do so, to object to the Recorder continuing to hear the case". We consider that all three of these reactions to the facts of this case were correct. It is plain that the Recorder considered that KCF was a longstanding and a current lay client, albeit that the connection proved to be with the group rather than the company itself and that in each case insurers played a significant part. In these circumstances, in the absence of waiver by Mr Smith, the Recorder should not have tried the case." (Smith v. Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242)
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- Business and commercial connections usually indicates apparent bias
“The fair minded observer would take the view that this gave rise to a real possibility that [the arbitrator] would be predisposed to favour [defendant] in the dispute in order to foster and maintain the business relationship with himself, his firm and his father, to the financial benefit of all three. Such possibility is not significantly diminished if, as [the arbitrator’s] evidence suggests, the financial benefit would accrue to his father rather than to the firm.” (Sierra Fishing Company v. Farran [2015] EWHC 140 (Comm) §57).
“A current or recent business association with a party will usually mean that a judge should not sit on a case" (Guide to Judicial Conduct, issued by the Judge’s Council, First Supplement, June 2006, §7.2.3; referred to in Howell v. Lees-Millais [2007] EWCA Civ 720 §8).
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- Personal relationships and animosity relevant
“a real danger of bias might be thought to arise if there were personal friendship or animosity between the judge and a member of the public…The same would, I think be true if there were personal animosity against a firm of solicitors or his partners.” (Howell v. Lees-Millais [2007] EWCA Civ 720 §10).
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“the judge knew Mr Jewson and Mr Jewson knew the judge. It was not a fleeting acquaintance. They had known each other for 30 years. The judge recognised that this fact alone was potentially a valid ground of objection to his trying the case when he acknowledged that he would have the “greatest difficulty” if he had to deal with a challenge to Mr Jewson’s evidence.” (AWG Group v. Morrisson [2006] EWCA Civ 6, §22)
Duty to disclose connections
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"[18]...In Davidson v Scottish Ministers Lord Bingham said at [19] that where a judge discloses matters which would or might provide the basis for a reasonable apprehension of lack of impartiality, "It is very important that proper disclosure should be made …, first, because it gives the parties an opportunity to object and, secondly, because the judge shows, by disclosure, that he or she has nothing to hide and is fully conscious of the factors which might be apprehended to influence his or her judgment." Similarly, in Jones v DAS Legal Expenses Insurance Co. [2003] EWCA Civ 1071 at [35] this court emphasised that where a judge becomes aware of circumstances which might give rise to an appearance of bias and a real as opposed to fanciful objection being taken by a notional fair-minded observer and an application for recusal might be made, "The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties." (Watts v. Watts [2015] EWCA Civ 1297, Sales LJ)
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“…it was [the arbitrator’s] duty to make voluntary disclosure to the parties of connections which were known to him which might justify doubts as to his impartiality, a duty recognised in General Principle 3 of the IBA Guidelines. Such disclosure is require of an arbitrator whatever ‘due diligence homework’ steps may be available to the parties to discover their existence for themselves.” (Sierra Fishing Company v. Farran [2015] EWHC 140 (Comm) §60).
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- Guidance on how to disclose
"[28]...The court provided the following 'guidance' for a judge who becomes aware of circumstances which might give rise to an appearance of bias:
"i) If there is any real as opposed to fanciful chance of objection being taken by that fair-minded spectator, the first step is to ascertain whether or not another judge is available to hear the matter. It is obviously better to transfer the matter than risk a complaint of bias. The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties.
ii) Some time should be taken to prepare whatever explanation is to be given to the parties and if one is really troubled perhaps even to make a note of what one will say.
iii) Because thoughts that the court may have been biased can become festering sores for the disappointed litigants, it is vital that the judge's explanation be mechanically recorded or carefully noted where that facility is not available. That will avoid that kind of controversy about what was or was not said which has bedevilled this case.
iv) A full explanation must be given to the parties. That explanation should detail exactly what matters are within the judge's knowledge which give rise to a possible conflict of interest. The judge must be punctilious in setting out all material matters known to him. Secondly, an explanation should be given as to why the problem had only arisen so late in the day. The parties deserve also to be told whether it would be possible to move the case to another judge that day.
v) The options open to the parties should be explained in detail. Those options are, of course, to consent to the judge hearing the matter, the consequence being that the parties will thereafter be likely to be held to have lost their right to object. The other option is to apply to the judge to recuse himself. The parties should be told it is their right to object, that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions. They should be told what will happen next. If the court decides the case can proceed, it will proceed. If on the other hand the judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed.
vi) The parties should always be told that time will be afforded to reflect before electing. That should be made clear even where both parties are represented. If there is a litigant in person the better practice may be to rise for five minutes. The litigant in person can be directed to the Citizen's Advice Bureau if that service is available and if he wishes to avail of it. If the litigant feels he needs more help, he can be directed to the chief clerk and/or the listing officer. Since this is a problem created by the court, the court has to do its best to assist in resolving it. "
[29] This is useful guidance but, as the court made plain, it should not be treated as a set of rules which must be complied with if a waiver is to be valid. The vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an un-pressured decision." (Smith v. Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242)
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- Disclosure of material facts, not every background detail
"[20] I do not agree with Mr McLarnon's criticism of the extent of disclosure made by the judge. The disclosure required to be given is of the material facts, not every background detail: see Resolution Chemicals at [42]. The judge did disclose the material facts. Armed with this information, Mr McLarnon was fully equipped to make the relevant application. No further disclosure was required." (Watts v. Watts [2015] EWCA Civ 1297, Sales LJ)
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- Party entitled to ask for reasonable information
"[24] In fact, any residual concern the appellant might have had that the other litigation in which the judge was involved trespassed upon the subject area of the proceedings which she was to try could have been resolved very simply either by asking Mr Holland or by raising the matter with the judge herself. Mr McLarnon's reference to the passage in Locabail at p. 19A-B, set out above, as precluding such an approach is misplaced. The point being made there is that a judge cannot be questioned about influences upon her with a view to making out a case of actual bias; but if a party has a reasonable request to make of a judge for relevant factual information in the context of an argument that an appearance of bias exists, in the absence of which the application cannot be made on the proper fully-informed basis which is required by the law, that passage does not prevent raising the difficulty with other counsel or the judge. This is not to encourage requests to judges to provide further information in relation to recusal applications: as I have emphasised above, a judge only has to provide relevant information which is material to the application and will in almost all cases have done just that. But there is no rule of law which prevents a party asking politely for more information if it exists and explaining why disclosure of it is required in order to enable the recusal application on grounds of appearance of bias to be advanced in a properly informed and effective way." (Watts v. Watts [2015] EWCA Civ 1297, Sales LJ)
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Connection with Judge's other work
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- Part-time judge must not accept case where the subject-matter might have a bearing on litigation in which they are involved
"[22]...The notional fair-minded and informed observer, knowing the professional standards applied by part time judges drawn from the legal profession, would understand that any deputy judge who found that she was being asked to try a case in relation to subject matter where there was a real risk that her ruling in the case (which would of course acquire a degree of authority as the ruling of a court) might have a bearing on the arguments to be advanced in other ongoing litigation in which she was involved as counsel, would immediately for that reason recuse herself. In such a case it would be clear that her interest as a barrister would conflict with her duty as a judge and, since that would be clear, it would be obvious that she could be expected to identify such a conflict and then act ethically and in accordance with her professional obligations by recusing herself. This would be so whether or not she happened to be instructed along with another counsel in the case, and whether or not that counsel was now appearing as counsel in the case in which she was to sit as a deputy judge. A part time judge does not have to reveal details of every ongoing piece of litigation in which she is professionally involved as counsel in order to allay suspicion whether any of them concern subject matter which overlaps with the case to be tried by her. On the contrary, the notional fair-minded and informed observer would not consider that there is any real risk that there is any such conflict of interest, since if there were the deputy judge could naturally be expected to identify the problem and recuse herself without more. The addition of the extra feature that the deputy judge might be leading other barristers in such other ongoing litigation does not change this analysis." (Watts v. Watts [2015] EWCA Civ 1297, Sales LJ)
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Waiver of potential apparent bias
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- Must act freely and in full knowledge of the facts
"[26] The basic principle is that waiver requires that the person who is said to have waived 'has acted freely and in full knowledge of the facts' – per Lord Browne-Wilkinson in R v Bow Street Magistrate, ex parte Pinochet (No 2) [2000] 1 AC 119 at 137. In Locabail (UK)Ltd v Bayfield Properties Ltd [2000] QB 431 at p. 475 this court commented:
"a party with an irresistible right to object to a judge hearing or continuing to hear a case may…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."
[27] In Millar v Dickson [2001] 1 WLR 1615 at 1629 Lord Bingham of Cornhill observed:
"In most litigious situations the expression "waiver" is used to describe voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression."
...
[29]...The vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an un-pressured decision." (Smith v. Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242)
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- Must be told how quickly the case could be tried if transferred to another judge
"[31] Mr Smith was not, however, given any information as to how quickly his case could be tried if he insisted that it should be transferred to another judge. No attempt appears to have been made to find this out. We think that the Recorder should at the outset himself have explained to Mr Smith what the options were and made quite sure that he was content that the Recorder should try the case." (Smith v. Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242)
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- Counsel should explain the facts but not seek to influence the decision
"[32] We also agree with Mr Speaight that the strong advice that Mr Nolan gave to Mr Smith was inappropriate in the circumstances, albeit that we accept that Mr Nolan thought that he was acting in his client's best interests...
[33] Where facts exist that raise an appearance of bias on the part of the judge it is right that counsel should advise his client of all the implications of the situation, including the implications of an adjournment. He can advise about the judicial oath and explain that judges are trained in considering cases objectively and disregarding any personal views that they may hold. But it is not appropriate for counsel to expound on his knowledge of the personal integrity of the individual judge. We have no doubt that Mr Nolan's vigorous recommendation of the qualities of his head of chambers was one that was entirely justified, but it made it very difficult for Mr Smith to opt for an adjournment without appearing to slight that recommendation and the object of it. This difficulty was the greater by virtue of the fact that the Recorder was Mr Nolan's head of chambers.
...
[37] More fundamentally, in a case such as this, we do not think that it is part of counsel's duty or appropriate for counsel to seek to influence the decision to be taken by the lay client. The choice is the client's and, while it is proper for counsel to inform the client of the implications of the choice, it is not appropriate for counsel to urge the client to waive his right to object to the tribunal. We are sure that Mr Nolan gave the advice he did with all good intentions, but his reassurance was, we think, directed to encouraging Mr Smith to waive his right to object.
[38] For these reasons we have concluded that Mr Smith's decision to agree to the Recorder continuing to try his case was not made freely. Moreover, it was not made with knowledge of all relevant information because Mr Smith was not told when the trial could take place before another judge. In consequence it did not amount to a waiver of his right to complain of bias. If we give permission for this appeal to be brought out of time, the appeal is one that we will allow." (Smith v. Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242)
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Preliminary views and conduct during the hearing
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Impermissible to make up mind based on preliminary papers
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“Our system is an adversarial one of submission and cross-examination and it is inexcusable for a Judge to have made up his mind on preliminary papers, even where has had papers from both sides. The question is whether the Judge did.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §46, Proudman J);
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But preliminary views are not bias (or grounds for recusal)
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“the business of this court would not be done if we were to recuse ourselves for entering the court having formed a preliminary view of the prospects of success of the appeal before us.” (El-Farargy v. El-Farargy [2007] EWCA Civ 1149, §26, Ward LJ).
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“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 unreliable, would not without more found a sustainable objection…I would add that the significance of a judge previously expressing views about a case or an issue must be viewed in the light of the circumstances. For example, if the judge has expressed the view at a ‘without notice’ hearing that a claimant has a good arguable case, it cannot preclude him from hearing the case or determining that issue when both parties attend. Similarly, where a judge is case managing complex civil litigation, the expression of a view at a time when directions are being discussed cannot be taken as a predetermined view of the matter or an inability to bring an objective judgment to bear on the ultimate issue. Case management of large scale litigation would otherwise be impossible. As the Court went on to say in Locabail the question of apparent bias is likely to depend on the facts and circumstances of the case.” (Jackson v. Thompsons Solicitors (a Firm) [2015] EWHC 218 (QB), §§20…21).
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“this case falls on the Jiminez side of the line and the Judge’s views were obviously preliminary views.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §50, Proudman J);
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Revealing current thinking is not bias
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“…on the whole the English tradition sanctions and even encourages a measure of disclosure by the judge of his current thinking. It certainly does not sanction the premature expression of factual conclusions or anything which may prematurely indicate a closed mind. But a judge does not act amiss if, in relation to some feature of a party’s case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be.” (Arab Monetary Fund v. Hashim (1993) 6 Admin LR 348 at 356, Sir Thomas Bingham MR).
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“we do not in any way underestimate the value, both in the formal English judicial system as well as in the more informal tribunal hearings, of the dialogue that frequently takes place between the judge or tribunal and a party or his representative.” (Peter Simper & Co Ltd v. Cooke [1986] IRLR 19, §17, Peter Gibson LJ).
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“The Judge had simply again used colourful language to express his current thinking on the particular point that [counsel for the taxpayer] was advancing at that time. He was not pre-judging the issue, he wished to have it clarified.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §90, Proudman J).
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But there is a time and a place
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“we accept that the chairman, experienced as he was, would not have made a final decision until the end of the case; but we feel found to observe that his comments were injudicious and untimely…[T]here is a time and a place for the expression of concluded views by the tribunal. The middle of a cross-examination before the employers’ case has been opened or the employers’ arguments presented is, in our view, plainly not such a time for such strongly expressed views to be aired by the chairman.” (Peter Simper & Co Ltd v. Cooke [1986] IRLR 19, §17, Peter Gibson LJ).
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Predisposition is not predetermination
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“They might have concluded from the exchange that I was sceptical of the validity of Dr Milton’s argument (as indeed I was) and possibly predisposed, on the basis of reading Dr Milton’s skeleton before the hearing and comparing it with the wording of s 144(1) ITEPA, not to accept it, but the fair-minded person would not conclude from that that we had prematurely expressed a concluded view or that our minds were closed. Predisposition is not the same as predetermination.” (Couldwell Concrete Flooring Ltd v. HMRC [2017] UKFTT 85 (TC), §117).
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Predisposition on one point does not mean predisposition against a party
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“By this time it seems clear that the FTT was going to find against the appellants on this point but it had allowed [counsel for the taxpayer] to continue making it for some time. A predisposition on a particular point will not, without more, translate into a general disposition against a party.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §95, Proudman J);
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The fact that a preliminary view becomes a final view does not indicate bias
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“just because a matter ends up in the decision does not mean that the Judge had concluded his views on the matter at an earlier stage. It merely means that his preliminary view is the one which eventually finds favour.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §70, Proudman J);
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Strongly expressed views can still be preliminary
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“I have some difficulty in understanding why a strongly expressed view cannot be a provisional view, leaving it open to the party criticised to persuade the tribunal as to why that view was wrong…Of course the more trenchant the view, the more the attachment of the label ‘preliminary’ may need scrutiny to see whether the view was truly preliminary and not a concluded view. But it is in my judgment unduly cynical to reject the repeated assertions that the views were preliminary thoughts or views, particularly when the tribunal has gone to the trouble of pointing out the various matters which needed to be addressed in the submissions directions for which were given.” (Southwark London BC v. Jiminez [2003] EWCA Civ 502, §38).
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“We can accept Mr Mantle’s argument that the remarks made by the FTT in the Penalty Decision might indicate that it had formed the preliminary view that HMRC had acted unreasonably in continuing to defend the full amount of the penalty originally imposed by the OFT. That is borne out by the FTT’s view, expressed in robust terms, that JGL had suffered a very considerable injustice…We do not, however, agree that the FTT’s remarks at [4] and [55] of the Penalty Decision amount to the FTT having prejudged the issue. As Mr Alan Bates, counsel for JGL, submitted, it is not unusual for a court or tribunal to express strong views about how a party has conducted a case…the FTT accepted that the proper course was for JGL to apply for costs in writing once the substantive decision had been released and that HMRC would have the right to oppose the application and be given time to respond to it. It was therefore quite clear that the FTT had recognised that it could not make a decision on costs without there being a formal application in respect of which HMRC would have the right to make representations.” (HMRC v. Jackson Grundy Limited [2017] UKUT 180 (TCC), §61 Judges Bishopp and Herrington).
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“He did not like the appellant’s case, nor did he believe [the taxpayer’s witness] (for all sorts of reasons), and he said so in no uncertain terms. His language was colourful. As in Simper, I feel bound to observe that his language and a few of his comments during the course of the hearing…were ‘injudicious’, but I also find…that the parties, and a fair-minded and informed observer, could have been in no doubt objectively…that the views which he expressed were only preliminary views and that there was no real possibility of bias.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §160, Proudman J);
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Adoption of one party’s pejorative labels does not necessarily indicate bias
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“Using HMRC labels in an effort to understand complicated factual issues in tax evasion disputes does not suggest bias. They are simply mechanisms to aid understanding and communication between counsel and the tribunal. Indeed I observed that even [counsel for the taxpayer] only just managed to stop himself using such labels before me by prefixing them with “so-called”.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §75, Proudman J).
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Discriminatory/offensive views
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“Making every allowance for the jocularity of the judge’s comments, one cannot in this day and age and in these troubled times allow remarks like that to go unchallenged. They were not only regrettable…They were likely to cause offence and result in a perception of unfairness. They gave an appearance to the fair-minded and informed observer that there was a real possibility that the judge would carry into his judgment the scorn and contempt the words convey.” (El-Farargy v. El-Farargy [2007] EWWCA Civ 1149, §26, Ward LJ).
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Failing to reconsider preliminary view after submissions is bias
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“Judge Brooks explained at [8] of the Costs Decision that the observations of the FTT at [55] of the Penalty Decision led him to the “inevitable conclusion that HMRC did act unreasonably in defending the appeal”. In other words, he took the observations made by the FTT in the Penalty Decision as its last word on the topic, amounting to a finding that an award of costs under Rule 10(1)(b) should be made.” (HMRC v. Jackson Grundy Limited [2017] UKUT 180 (TCC), §63 Judges Bishopp and Herrington).
Reliance on set-aside decision
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“The FTT was effectively saying that, absent new material, it would be unfair for the FTT to exercise its own judgment on the matter but that it should defer to the earlier tribunal. That is not the nature of jurisdiction the FTT on a re-hearing of an appeal or 20 application following the setting aside of an earlier decision. The FTT is not in those circumstances tasked with reviewing the earlier decision. That earlier decision is of no effect; it is a matter for the tribunal on the re-hearing to reach its own independent conclusions untrammelled by the decision that has been set aside.” (Romasave (Property Services) Ltd [2015] UKUT 254 (TCC), §85, Judges Berner and Falk – FTT held that taxpayer should not be worse off as a result of an earlier decision being set-aside due to the non-attendance of the taxpayer).
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“…the fair minded observer has to consider whether there was a real possibility of bias in favour of Mr Nowlan’s conclusions; a simple possibility of bias is not enough… Although a careful inspection of the passages in which reference is made to Mr Nowlan’s decision show that the FTT making up its own mind first and then expressing agreement with Mr Nowlan, the references the FTT makes to Mr Nowlan’s decision, in particular the references it makes to that decision when it has no need to do so, give rise in our minds to the possibility that the tribunal had an conscious or subconscious desire to agree with that decision, or to recite evidence with the aim of coming to the same conclusion: why else did each substantive conclusion need to be measured against that of Mr Nowlan?” (Wright v. HMRC [2013] UKUT 0481 (TCC), §§80…81, Judges Hellier and Gort – FTT decision set-aside but fresh FTT made extensive reference to set-aside decision).
Limiting cross examination because the Tribunal views the matters as irrelevant
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“I see nothing wrong in the Judge’s wish to move the evidence on from a point that had now been made at length and which he considered to be largely irrelevant.” (GSM Export (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §89, Proudman J).
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Descending into the arena
Advancing points not raised by the other side without giving an opportunity to respond indicates bias
“…the content and tone of the tribunal’s communications with the parties, once the dispute as to impartiality and jurisdiction had arisen in the summer of 2014, and of the give communications with the Court thereafter, justify doubts as to his impartiality. The correspondence from [the Arbitrator]…is argumentative in style and advances points against the Claimants which had not been put forward by the [Defendants], and to which the Claimants had not been given an opportunity to respond…He gives the appearance of having descended into the arena and taken up the battle on behalf of the [Defendants].” (Sierra Fishing Company v. Farran [2015] EWHC 140 (Comm) §65).
See also N8: Tribunal’s Role (Facts)
Suggesting amendments to a party’s case
“The judge was thus entitled to ask whether the respondent proposed to run any new case following the hearing of the evidence. I bear in mind, as I have said, we do not have a transcript of precisely what the judge said, but I have no doubt that he would have been going beyond his function if he had suggested in any way that a particular case was a case which the respondent ought to run. That would have been, as is sometimes put, to descend into the arena. The judge must remain outside the arena in order to conduct the trial impartially.” (Hayer v. Hayer [2012] EWCA Civ 257, §37, Arden LJ)
Criticism of a party rarely a ground for recusal
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“The mere fact that a judge has decided a case adversely to a party or criticised the conduct of a party or his lawyers will rarely if ever be a ground for recusal.” (Howell v. Lees-Millais [2007] EWCA Civ 720 §10).
Criticism of Tribunal leading to hostility
“The conclusion we have sadly reached is that the tribunal took an attitude, possibly in reaction to the criticism of its accessing the Internet for itself, which it thought it was entitled to do, that to an extent appeared to be hostile to the Appellant. It seems to us that this tribunal, for those reasons, cannot continue to hear this case.” (East of England Ambulance Service NHS Trust v. Sanders UKEAT/0217/14/RN §45).
Passage of time relevant
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“The passage of time between the events said to give rise to the apparent bias and the hearing or trial is a relevant factor.” (Howell v. Lees-Millais [2007] EWCA Civ 720 §9 – case concerned failed discussions between judge and a party’s solicitors for the judge to join the solicitors firm, less than a month before the hearing).
“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.” (Locabail UK Ltd v. Bayfield Properties Ltd [2000] QB 451 (CA), §25).
Tribunal given opportunity to comment on facts relating to bias
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“Tribunals should understand that when they are asked by the EAT to provide their comments on an affidavit asserting facts from which bias or irregularity may be inferred, they are being asked about the facts of what happened. A fact may of course include the reason why the tribunal acted as it did. What it does not extend to is argumentative matter, commenting upon the motives of, or casting aspersions upon, a party before it. Its role is to give a factual report which will agree with or correct the facts set out in the affidavit of the Appellant. Unfortunately, as it seems to us, the Judge did not entirely see his role in this limited factual sense.” (East of England Ambulance Service NHS Trust v. Sanders UKEAT/0217/14/RN, §13).
Judge entitled to give decision on recusal application with reasons after the trial​
"[27]...In my view it was correct in the circumstances for the judge to give her decision with reasons to follow later, so that the trial could proceed without further delay and to minimise the risk that it might have to run over, so adding to the cost. The test is not one of how the individual litigant might feel subjectively, but an objective one of how the notional fair-minded and informed observer would view matters. Such an observer would not think that this way of proceeding displayed any disposition of unfairness towards the appellant. It only gave rise to the appearance of a judge willing to make a sensible case management decision in accordance with the overriding objective set out in CPR Part 1. Proceeding in this way was in line with the approach adopted by this court in Resolution Chemicals, in which the court considered an appeal in which permission had been granted for an appeal against the judge's refusal to recuse himself and then gave its ruling dismissing the appeal with reasons to follow, so that the trial could proceed straight away and before the court's reasons were handed down: see [4]. There was no suggestion by this court in that case that this would create any difficulty in terms of appearance of bias, simply because the disappointed applicant would not know until after trial the reasons why its arguable appeal for recusal of the trial judge had been unsuccessful. I cannot see that any difficulty arises by reason of a court proceeding in this way." (Watts v. Watts [2015] EWCA Civ 1297, Sales LJ)