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Is there bias if the Judge is leading one of the barristers in a different case?

 

 

Watts v Watts 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1297.html

is a Court of Appeal decision about judicial bias, and whether the Judge should have recused herself.  This was a dispute between a brother and a sister about property issues.

In this case, the issues were effectively that the Judge did disclose to the parties that one of the barristers, Mr Holland (the one acting for the sister) was being led by the Judge in another case.  I.e the Judge was still in practice as a barrister and was leading counsel in a different case where one of the barristers in front of her  was her junior.

The request for the Judge to recuse herself, and the subsequent appeal, was therefore on these arguments:-
1. That the Judge had a conflict of interest due to professional involvement with Mr Holland, which might cause or give rise to the perception of bias.

2. That as the case was on a conditional fee arrangement (no win no fee), Mr Holland would only get paid if he won the case, so the existing professional involvement might make the Judge more desirous of an outcome where her junior in a long-running case where she would have to continue working with him would not have lost a big pile of money as a result of the Judge’s decision on this case.

3. That as the nature of that particular case involving the Judge leading Mr Holland was not known, it was possible that the Judge might be tempted (if it was in a similar field) to give a decision or set a principle in THIS case which might be helpful in that case.

 

The nub of the case was as to in terms of the conflict of interest, was the Judge expected to reveal absolutely everything, or was it sufficient that she revealed sufficient for a proper view to be taken, whilst not showing more than was necessary or appropriate? Just how much should be uncovered?

This is important stuff, and I think it is really important that all of the essentials get covered here.

 

Now, is the coverage sufficient here? I'd hate to be accused of skimpy coverage

Now, is the coverage sufficient here? I’d hate to be accused of skimpy coverage

 

[My inclusion of this is actually LESS gratuitous than the inclusion of it in the show itself…]

 

  1. Discussion
  2. On the appeal, Mr McLarnon criticised the judge on three grounds: (i) for the paucity of information provided by her about her involvement with Mr Holland; (ii) for announcing her ruling at the commencement of the hearing but only giving her reasons at the end of it; and (iii) for the decision not to recuse herself, which he maintained was unlawful because of the appearance of bias which he submitted she presented in the circumstances. I deal with these in turn.
  3. In relation to ground (i), Mr McLarnon relied in particular on the following guidance. 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.”
  4. Mr McLarnon submitted that provision of full material in this sort of situation is particularly important because parties are not permitted to question the judge about the position, and so are not able to seek and obtain the full facts if they are not disclosed by the judge of her own volition at the outset. In that regard, Mr McLarnon referred to Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, CA, in which at p. 472A-B the court said “The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.” Mr McLarnon further submitted that the inadequacy of the disclosure by the judge serves to reinforce his main ground of appeal, that she presented an objective appearance of bias.
  5. 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.
  6. Mr McLarnon submitted that the disclosure was inadequate because it did not reveal the subject matter of the litigation in which Mr Holland and the judge were instructed, so it was possible that the judge might have an interest in giving a ruling in the present case which might assist them in that other case. Additional disclosure should have been given to allay any such fears.
  7. This argument proves too much. I cannot accept it. 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.
  8. I should also mention that the judge was bound by obligations of confidentiality owed to her client in the other case and was therefore not at liberty to go further than she did unless there was a strong public interest to do so. There was none, for the reasons I have given. To my mind, it is clear that she has behaved entirely correctly in giving the disclosure that she did.
  9. 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.
  10. I record here that we asked Mr Holland, through leading counsel, whether the subject matter of the other litigation in which he was instructed with the judge overlapped with the subject matter in the present proceedings and he confirmed it did not. No doubt the judge would have given the same confirmation had the point been raised with her. But for the reasons given above this was not information which she was required to state or volunteer.
  11. Under ground (ii), Mr McLarnon contends that the judge erred by reserving her reasons for refusing the recusal application until the end of the hearing. He submits that this left the appellant in the difficult position throughout the trial of believing that he had good grounds for objecting to the judge sitting in the case, knowing that she disagreed, but not knowing why: the appellant was subjected to a trial without any certainty that non-recusal on the part of the judge was justified. This again, Mr McLarnon says, reinforces the objective impression that the judge might be biased and might be behaving unfairly.
  12. I reject this submission. 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.

The appeal had not succeeded. The Court of Appeal give their final summary here

 

 

  1. 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.

    Conclusion

  2. For the reasons given above, I would dismiss this appeal.

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

17 responses

  1. ashamedtobebritish

    Suess I’m trying to get my head round bias and conflict of interest … is it either, if a family court judge (HHJ) hops onto the criminal bench to sentence a family member mid proceedings? Then hops back to family proceedings (that he won’t let go of) but refuses to recuse himself on these grounds, after asking twice for recusal, I’m thinking this needs to go to the RCJ.

    • You don’t technically swap benches when doing this, but I get what you mean.

      I believe that there’s an authority to say that a Judge dealing with a case should not also make the decision on conviction/sentence for contempt in the face of the Court. (i.e someone being rude or abusive to the Judge or others in the Court. * I can’t currently lay my hands on the authority though) I don’t think that the same applies to contempt for say breach of a Court order.

      However, para 44 of Practice Direction 81 which deals with contempt, may be of some value


      4.4 If there is a risk of the appearance of bias, the judge should ask another judge to hear the committal application.

      In which case you are into the bias or appearance of bias case-law (most of which are discussed and linked to in the judgment in this very piece.

      For me, it might depend what is meant by mid-proceedings – if you mean during the final hearing, then I think a Judge would need to be careful to be sentencing someone to prison for a contempt of Court whilst hearing live evidence in an ongoing case. If by mid-proceedings you mean at a point between issue and conclusion, I think it is less problematic (though it might be worth making an application for the Judge to recuse themselves – at the very least a marker is being put down about the risk of bias and the need for care to be taken, and also, you can’t properly later appeal if you didn’t ask the Court to consider recusal)

      I came across this whilst I was searching – the Law Commission are going to report on Contempt (the link says report to be published in late 2015, so it needs updating one way or t’other) http://www.lawcom.gov.uk/project/contempt-in-the-face-of-the-court/

      • ashamedtobebritish

        Sorry I should have been clearer. The judge was hearing the family issue, a different judge was overseeing the criminal element within the criminal court (it was not contempt)
        Criminal judge was pushed out by family judge who sat on criminal case in criminal court, proceeded to sentence family member to 25 yrs imprisonment, dusted himself off then returned to family court to continue hearing the family proceedings (which were centred around why there was a criminal case initially)
        Family proceedings are ongoing with same judge who refuses to recuse himself (twice now) I’m nervous due to the final hearing being this month

      • Oh, that is rather different. I suppose that it doesn’t make any difference to threshold – the conviction would mean that threshold was definitely crossed. And that particular family member isn’t prejudiced, because if he/she is serving 25 years they are de facto ruled out as a carer for the child anyway.

        what that leaves, I suppose, is whether any of other family members involved are at risk of a finding of failure to protect or culpability for the injuries/abuse short of directly causing it themselves, and whether the Judge feels that all of the risk has now been removed and the child can live safely with the family members who are not in prison or whether he feels that the child would still be unsafe within the wider family. It could be argued that the knowledge of the criminal proceedings makes him placed to form an informed view on that. However, if his summing up in the criminal trial had comments about the members of the family not on trial as witnesses, then there could potentially be prejudice.

        I’ve never come across this happening – which doesn’t necessarily mean that there’s a bar on it happening. A recusal obviously avoids the risk of the final outcome being appealed on a Sussex Justices point. It would certainly be a novel point of law. I’m not sure that it is possible to get home on actual bias (depending on as I’ve said, whether the judicial summing up in the criminal trial might indicate a pre-determined view of certain matters before they are litigated in the family case), and although the test for bias is whether a fair minded observer might conclude that there was or the potential, in practice (as in the case in this particular blog-post) the Court of Appeal sometimes go a bit higher than that.

        Without knowing all of the facts, very hard to say. I’d think there was the risk of an appeal by not recusing oneself, and better to avoid that than build in a 6-9 month delay of waiting for the outcome of an appeal. But whether the Court of Appeal would rule that a Judge was wrong to not recuse themself in this scenario, I really couldn’t predict.

      • ashamedtobebritish

        Thank you, we will see what the COA has to say if and when he denies a third recusal attempt.
        I will keep you informed in private, without the case detail or names obviously, as this is one case that will not be published

      • It is difficult to tell from the description you give as obviously it can’t be too detailed. I understand you’re saying that the family judge did the sentencing, but not the trial? A recusal situation could arise, but probably only in 3 ways.
        1. if the judge who did the sentencing made comments about any of the parties in the family proceedings that suggests he has come to a decision about things that are disputed in the family proceedings
        2. if the judge made any comments in the sentencing remarks that suggests he has already decided whether any of the potential witnesses in the care proceedings were truthful witnesses in the criminal proceedings;
        3. if the judge has come into possession of any information in the course of his involvement in the criminal proceedings that is relevant in the family proceedings but cannot be admitted. (this is pretty unlikely, as anything admissible in the criminal proceedings would usually be admissible in the family proceedings)

        I have to say, having recently come to have to look at the apparent-bias authorities, the test is pretty high and the Court of Appeal are on guard against ‘judge-shopping’. I think that unless one of the three issues I raised above arose, the Court of Appeal would not have much sympathy for the point and might go so far as to say there was an advantage in having the same judge deal with the care proceedings and the sentencing. Bear in mind that at sentencing all the facts leading to guilt and innocence have been decided by the jury (or admitted by a guilty plea) and the sentence is just about the seriousness of the offence and the circumstances of the offender.

        Having said that, you might be able to get some help from the Bar Pro Bono unit if you wanted some advice on an appeal. The description is sufficiently interesting that you would probably find someone through the Unit who would give a couple of hours to read the relevant papers and have a think about whether they think there’s merit in the argument. If your previous application occurred in the last three weeks you can try to appeal anyway. Although the rules seem strict, the Court of Appeal are often fairly relaxed about time limits and litigants in person, and are very willing to allow major amendments to the grounds of appeal if they think there is a good point is somewhere in it. It is, however, better to get your appellant’s notice in on time without the supporting documents, explain why you don’t have them, and then send those in later than fail to bring your appeal in the 21 days. And if you did appeal, the Court of Appeal could order a transcript from the tape recording at public expense.

        You should be careful about making the same application (for recusal or anything else) repeatedly. Making the same unsuccessful application several times could, if you do it regularly enough, lead to orders that prevent you making any applications at all in future.

      • ashamedtobebritish

        Thanks Jim, I’m going to have a long hard think about this, it makes sense what both you and Andrew say. I do however feel this judge has to go, he is clearly biased for may reasons, which I can’t go into

  2. Reblogged this on Parents Rights Blog and commented:
    In this case, the issues were effectively that the Judge did disclose to the parties that one of the barristers, Mr Holland (the one acting for the sister) was being led by the Judge in another case. I.e the Judge was still in practice as a barrister and was leading counsel in a different case where one of the barristers in front of her was her junior.

  3. : Lord Justice Thorpe said There is nothing more serious than a removal hearing, because the parents are so prejudiced in proceedings thereafter.

    He was of course quite correct ! The judges are ALL biased in favour of social workers in the family courts without the need for any nit picking as to previous association between the judge and the barristers.
    Unfortunately the judges usually decide on balance of probabilities that the evidence of the social workers and the guardian is more likely to be true than the evidence of the parents ,
    so ….. goodbye baby……………..;

    • It is not quite the use of prejudice that you are reading there. What Thorpe LJ was saying was that it is much harder for a parent to show that they are a good parent and have made changes if the child is not in their care on a day to day basis – that’s why the test for interim removal was raised to its current test. That’s quite true – it can be very hard for a parent to show those changes if the child has been removed in the interim – an interim removal does make the final hearing more difficult for a parent. That’s why the test for interim removal was substantially raised by Thorpe LJ (and from time to time raised a little bit further).

      I’m interested that you think that ALL Judges are ALL biased in favour of social workers, and I’ve got an absolute ton of cases which suggest otherwise. I think it would be almost impossible to suggest that the President, in any of his incarnations as a Judge has ever been biased in favour of social workers; and I’ve reported on plenty of cases where the Judges rightly gave social workers a kicking (and a couple where they gave them a kicking anyway just for the hell of it).

      If you want to say these are rare exceptions, then fine (they seem to be about half of published cases to me, though published cases aren’t exhaustive or representative), but at least your sentence needs to be “Many Judges are biased in favour of social workers”

      • I am sure you are a great lawyer Andrew and I admire your valiant attempts to interpret L;J; Thorpe’s comment in a way that seems favourable to the family courts !
        But Andrew “prejudiced” means prejudiced ,ie the Oxford dictionary defines it as “preconceived opinion ,or biased……….
        I stick with Thorpe when I claim that at least most judges start proceedings with the notion that social workers are truthful and parents probably not otherwise they would not be there ! That is not to say that these same judges will not castigate the social workers before deciding in their favour ! Only one in 400 applications for care orders are refused (judicial statistics) so what chance do most parents have in the prejudiced family courts?

      • As happens quite often, we disagree. But that’s fine.

      • At the risk of sticking my head above the parapet, my mini-OED defines ‘prejudice’ in three ways:
        1. a preconceived opinion;
        2. intolerance of people of a particular race, religion, sexual orientation etc;
        3. a detriment to something.
        If you’ve only got number 1, you might want to invest in a better dictionary…

      • Yes, I think Thorpe LJ was using the third meaning, Ian insists it is the first.

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  5. Shirley Buckley

    Andrew I dont know about the prejudiced family courts, but the Court of Protection has treated me with total hostility from 2006 to the present day. Read Charles judgment of October 2007, and the one of September 2007 – not on bailii – simply took me to pieces, because I was Martin’s mother. Sara Ryan and Mark Neary only confirm this. Also this is a Court and judges who are administering an Act that is not fit for purpose. Read Charles latest statement “I CANNOT THINK OF A MORE SERIOUS SITUATIONTO HAVE FACED A COURT IN RECENT LEGAL HISTORY” Why isnit this at the ECHR???????

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