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More heat than light – appeal on recusal

Posted on July 11, 2022 by suesspiciousminds

This is an appeal from a decision of Keehan J not to recuse himself for future hearings following what was on any description a very challenging interaction between Judge and counsel.

When I first thought about writing this post my intention was to try to be studiously neutral – I obviously wasn’t in Court, I didn’t hear the evidence, I haven’t read the full transcripts or heard them, and these matters were clearly highly contentious. Also, because both Judge and counsel are named, I did not want to be disrespectful to either of them on what was clearly a situation that was heated and became even more heated as things went on.

I have reconsidered slightly, and I think that I will just give my quick view that I think things got badly out of hand and that there were faults on both sides but with the benefit of being removed from the case in time, stakes and no connection to it I think the Judge reacted badly to some provocative remarks both orally and in writing BUT that as one of the episodes of counsel/Judge conflict did lead to the evidence given by a witness being potentially affected, I think the Court of Appeal COULD have allowed the appeal, but weren’t wrong to refuse it.

Deep breath.

Re AZ (A Child: Recusal) 2022

https://www.bailii.org/ew/cases/EWCA/Civ/2022/911.html

The background of this case is complex and difficult. Effectively, the mother and father entered into a surrogacy arrangement and a child, A resulted from that. The clinic had kept some of father’s gametes, and it was later found that by way of deception on the mother’s part, those gametes had been released to her in order to enter a second surrogacy arrangement unknown to the father, which produced twins.

There had been quite a lot of litigation, and serious findings had been made against the mother in relation to the conception of the twins and her honesty whilst giving evidence in those proceedings. The mother made allegations of domestic abuse against the father which the Judge found not to be true and that she had been dishonest in her evidence about these matters.

The parents had separated and a decision was made by the Court that A was to live with his father. The mother then made an application for Child Arrangement Orders for the twins, not mentioning in her application the adverse findings made by Keehan J in A’s proceedings.

The mother made complaints to the police about the domestic abuse (subsequent to the findings that they were not proven, and not mentioning those findings) and similarly about the father who was a doctor to the General Medical Council.

A five day hearing took place in August 2021. The mother sought at the outset an adjournment of the hearing on medical grounds. It was finally agreed that she would give evidence remotely.

Counsel instructed for the mother, Mr Uddin, had prepared a position statement in support of her application to withdraw.

In the course of summarising the circumstances in which his client’s medical condition had come to the court’s attention, counsel included the following observations:
“The application for an adjournment is made by the respondent mother with some trepidation. The mother feels that this court will use against her any application for an adjournment.”
“It is apparent that the court due to issues at previous hearings has a distrust of the mother and to put it bluntly prima facie disregard for the mother’s position.”
“It is one thing for the court to deny the mother to vary an interim contact order but another to disregard her application for an adjournment.”
” …she had ignored her own health conditions to avoid a delay in these proceedings and her weariness of this court due to her previous experience before this court.”
“The subsequent treatment of the mother by the court after her cancer disclosure has solidified mother’s weariness of this court.”
“It is true the mother has raised questions about the conduct of the court at previous hearings, but it would be unfair and unjust for the court to use this against the mother which the mother feels the court is doing.”

In the early stages of the hearing, the Judge made some remarks in relation to this document.

The transcript of the hearing shows that almost immediately after the start of the hearing, the following exchange took place:
“Judge: Yes, Mr Uddin?
Counsel: May it please you Lordship, my Lord —
Judge: It does not please me, actually, because I consider your position statement to have been impertinent and impudent and I should tell you now that if you ever dare file a position statement like that before me again, I will consider reporting you to the Bar Standards Board. Do you understand?
Counsel: Thank you, my Lord. My Lord, the position statement was done on instructions from my client
Judge: Yes, I am sure it was.”

The second most serious matter occurred during the Guardian’s evidence.

This instance is described as “bullying and threatening the Appellant’s counsel with the Bar Standards Board on the 27th August 2021”. As all parties recognised, this was the most troubling incident during this difficult hearing. In argument before us, Ms Ancliffe placed particular weight on it in support of the appeal.
The background to this incident is a passage in the evidence given by the children’s guardian at the end of the previous day’s hearing. During questions from Mr Wilson on behalf of the father in which he was challenging the need for a family assistance order, the guardian had described the relationship between the mother and A as “so special and so close” and continued:
“I think we’re looking hopefully at a new chapter in this little boy’s life, one where he can resume a positive relationship with his mother and learn about his siblings. All of these things are really important for A, for his sense of identity. He must have suffered trauma and loss losing his mother out of his life and all of his extended family, to whom he was very close and, again, I’ve observed that personally on more than one occasion. So, to have that back in his life would just be so good for him and I think the CAFCASS officer could assist with that.”
On the following morning, shortly after Mr Uddin started his examination of the guardian, the following exchange took place:
“Counsel: Now, yesterday in evidence you said, and please correct me if you find me to (inaudible) in any way, that A did suffer trauma when he was moved away from [the mother] to the care of [the father] leaving behind—-
Judge: If [the guardian] said that, I did not hear it.
Counsel: Well, I did– I prefaced it, my Lord, with the “If I have misquoted you, please correct me.”
Judge: Yes. All I am saying is I do not recall her saying that.
Counsel: Well, my Lord, she (inaudible). My Lord, I am asking a question but I did preface it and said, “If I misquote you.” What would you like my Lord to do, not– for me not to even ask the question because your Lordship has not heard it?
Judge: Well, she did not say it.
Counsel: Well, let us hear what she says then, my Lord.
Judge: Do not talk to me like that.
Counsel: My Lord –
Judge: You carry on and do what you want.
Counsel: Well, my Lord, how could I do anything I want? I am in your Lordship’s court.
Judge: Yes. It would be helpful if you could remind yourself of that. Now ask the question.
Counsel: Well, no, my Lord. I—-
Judge: Ask the question.
Counsel: Well, I want– I think we need a five-minute break because I do not like being spoken to like this. I am an officer of this court. I deserve respect. Your Lordship comes into this court and we all stand up because we show respect and I am an officer of the court. I will not—-
Judge: No you are not —
Counsel: (inaudible)
Judge: –an officer of the court. You are not a solicitor. You are a member of the Bar.
Counsel: Well, my Lord, I—
Judge: I am not wasting any more time. Get on with your cross-examination.
Counsel: My Lord, I will make one further point. This is my workplace. This is my workplace, just like your clerks and—-
Judge: Will you please just get on with asking your question?
Counsel: I will but can I have it affirmed from you that you will not talk to me in that way?
Judge: If you speak to me respectfully, I will speak to you respectfully.
Counsel: My Lord, I apologise if I have come across in any way disrespectful but this is my place of employment and I will not be spoken to in that way by anybody. When I have employees, I never speak to them in that way.
Judge: You are getting yourself close to being reported to the Bar Standards Board. Now please just get on with your cross-examination.
Counsel: May I ask that same question again or not?
Judge: Certainly.
Counsel: Yesterday – please correct me if I misquote you in any way – my understanding was that A suffered trauma when he was moved away from [the mother], away from the extended family and her. Am I quoting you right or am I misquoting you?
Witness: I think you’re probably misquoting me. I don’t remember using the word “trauma”. I’m not saying A wouldn’t have suffered trauma but I don’t recall saying that in evidence yesterday.
Counsel: Okay. Well, I did say– I said in fact– I had a note of “trauma” and I will– I stand to be corrected. Did you use the word “traumatic” then or– can you recollect?
Witness: I can’t recollect, I’m sorry.
Counsel: All right then. Well, then, in that case, in relation to the upheaval, how do you think that has affected A?
Witness: I think A because of his age would have been confused about the changes that took place moving from one residence to another residence. He already had formed a good relationship with his father so it wasn’t as though he was going some– with someone he didn’t know. The environment would have been slightly different but, yes, I think it– because he’s preverbal and explanations couldn’t really be given to him as to what was happening in his little life, you know, I think he would have been confused.”
The guardian’s evidence continued. A little later in the morning, following a short adjournment for unconnected reasons, Mr Uddin addressed the judge in these terms:
“My Lord, if I may be permitted to make this personal statement which is recorded here, in these proceedings today was the second time your Lordship has threatened me with the Bar Standards Board and I am concerned whether my client is losing confidence in me and whether I can continue. However, having spoken to my client, she has not lost confidence in me. I will continue with this case but, my Lord, I totally appreciate these kind of cases are not easy for anyone concerned, even your Lordship. These are dealing with the souls of people and, my Lord, I am also a human being with blood and salt running through my veins and if there is another threat, my Lord, I am going to have to consider– I totally accept, if I am in any way inappropriate, then your Lordship should admonish me so, on that basis of that understanding, my Lord, I am going to continue. I feel my client has not lost confidence in me and I can carry on. I just wanted to put this marker down, my Lord. May I continue?”
The judge did not respond to this statement. Counsel resumed his examination of the guardian. There were no further episodes of conflict between him and the judge.

It was submitted on behalf of the mother that this incident would lead a fair-minded and informed observer to consider that there was a real possibility of bias for several reasons. First, the judge’s initial intervention was wrong and unfair. Counsel’s recollection of the guardian’s evidence the previous evening was correct: she had referred to trauma. Secondly, the judge lost his temper with counsel and addressed him in a way that amounted to bullying. Thirdly, counsel was clearly unsettled by the way in which the judge addressed him and asked for an adjournment, which the judge refused. Fourthly, the judge’s renewed threat to report him to the BSB was unjustified and wrong. Finally, the effect of the intervention was that the guardian wrongly said that counsel had misquoted her. The judge’s intervention therefore materially undermined the evidence.
In response, Mr Wilson acknowledged that the judge’s comments during this exchange may be the most troubling. He pointed out that counsel’s summary of the guardian’s evidence the previous day was not precisely accurate. He did not seek to defend the judge’s reference to the BSB. He added, however, that, following this exchange, Mr Uddin had continued to cross-examine the guardian for an extended period recorded over a further 21 pages of transcript, during which there were further respectful and productive exchanges between judge and counsel. This was one incident over a five-day hearing and, in evaluating the question of apparent bias, a fair-minded and informed observer would have regard not just to this moment but to the whole hearing in the context of the overall proceedings.
In his written submissions to this Court, Mr Bowe informed us that, having carefully considered the transcript, the guardian could see that counsel’s question did not strictly reflect the evidence that she had given the day before in that she had not said that A had suffered trauma “when he was moved away” from the mother to the father but rather that A must have suffered trauma having lost the mother and his extended family. He added, however, that the guardian’s perception was that the judge unexpectedly shouted at counsel when telling him not to talk like that, causing counsel to request a five-minute break and that the style of the intervention, taken in combination with the previous admonition and reference to the BSB on 25 March, resulted in what Mr Bowe called a somewhat freezing effect on counsel. He also noted that the effect of the intervention was to cause the guardian to doubt her previous evidence and potentially deprive counsel of the opportunity to explore the issue of “trauma” more fully on the mother’s behalf. For those reasons, it was his submission that a fair-minded observer would consider that instances (3) and (8) together do amount to apparent bias.

The Court of Appeal had to consider whether the judicial tests for recusal (i.e that this Judge would not hear this case again) were met and whether the Judge had been wrong to refuse the application to recuse himself.

Obviously, any application for recusal is very difficult. You are, on instructions, having to apply to the Court to say to them that your client does not consider that they have been fair and that they cannot decide the case fairly in the future. Nobody really wants to say that to a Judge, and probably no Judge really wants to hear it. There is a balance to be struck between the duties to fearlessly represent your client but also to have respect towards the Court, and it can be a very difficult tightrope to walk.

The Court of Appeal said this

In this part of the case we are concerned with alleged bullying of counsel by a judge. Where it occurs, judicial bullying is wholly unacceptable. It brings the litigation process into disrepute and affects public confidence in the administration of justice. However, it inevitably remains the case that situations of conflict between bar and bench will sometimes arise. In that connection we make the following points.
First, counsel are sometimes obliged to object to, or be critical of, something said or done by the judge in the course of a hearing. Judges should, and almost always do, appreciate that this is a fundamental part of the advocate’s role and should entertain the objection with respect, even if they regard it as ill-founded. However, respect goes both ways. It is important that any such objection or criticism is expressed, however firmly, in a professional way. Most judges nowadays conduct hearings in a less formal manner than may have been usual in earlier generations, but that is not a licence to disregard the particular position of authority which they necessarily enjoy.
Second, trials are a very intense environment. Even the best counsel may in the pressure of the moment express themselves in ways which they did not really intend or say things which they would not have said if they had had time for reflection – whether in the context of an exchange with the judge of the kind discussed above or more generally. Judges should, and almost always do, recognise this. Many such lapses can simply be overlooked or corrected with a light touch.
Third, there will nevertheless be occasions when counsel’s conduct requires explicit correction or admonishment. In such a case the judge should try to ensure that any rebuke is proportionate and delivered in measured terms, without showing personal resentment or anger. Even a merited rebuke may be unsettling for counsel; and it may also, even if unjustifiably, have an impact on the confidence of their client in the fairness of the hearing. That said, some such impact may be unavoidable, in which case it has to be accepted as a consequence of counsel’s behaviour.
Fourth, a statement by the judge that they are considering referring counsel to the BSB is a particularly strong form of admonition and is accordingly particularly liable to have an adverse impact of the kind referred to above. For that reason, we believe that it will rarely be appropriate for a judge to raise the possibility of referring counsel to the BSB in the middle of a hearing. In the great majority of cases, the better course will be to wait until the end of the hearing, which will avoid raising the temperature more than is necessary and will also mean that the judge can evaluate counsel’s conduct in the overall context of the hearing. In the rare case where an allegation of professional misconduct does have to be raised in the course of a hearing, the situation will require sensitive handling and the judge will be well advised to take time to consider carefully when and how to raise the matter.
Finally, since judges are human, and (as Black LJ observed in Re G, supra) hearings can be challenging for them as well as for counsel, they will sometimes lapse from these high standards, and incidents will occur which the judge should have handled better. But such lapses do not necessarily amount to bullying; still less does it necessarily follow that in such a case the hearing will have been unfair or that the judge should recuse themselves from any further involvement. On the contrary, it is fundamental to the culture and training of a professional judge that they will decide each case according to its objective merits. If judge and counsel rub each other up the wrong way, whether or not it is the fault of either or both, that can be, and almost always is, put to one side in the decision-making process. Likewise, the professional training and experience of counsel should enable them to deal with criticism from the bench, even if they may believe it to be unjustified.
We should add that although the mother’s reference to bullying requires us to consider the judge’s conduct, the dispositive question on this application is not whether he was guilty of misconduct in relation to either instance but whether his conduct would give rise to a reasonable apprehension that he was biased against the mother, because of her counsel’s behaviour.

They went on

In his third judgment handed down on 15 November 2021 the judge said that parts of the position statement filed for the hearing on 25 March 2021 were “rude and impertinent”: the phrase he used at the hearing itself was “impudent and impertinent”. We might not have used those precise terms, but we agree that the passages that we have quoted from the position statement are objectionable. Although, as we have acknowledged above, there are occasions where it is counsel’s duty to accuse a judge of unfairness, in the context of the adjournment application the accusation was not only unfounded but gratuitous. It did not advance the substance of the application to say that the mother feared that it would be unfairly “disregarded” because of the judge’s previous findings, still less that she feared that he would use it against her. Those assertions did no more than vent the mother’s personal feelings about the judge’s findings (which findings were unappealed). We recognise that this may not have been an easy position statement for Mr Uddin to draft but if his response to the judge that it was drafted “on [the mother’s] instructions” meant that he thought he was obliged to make offensive imputations of this kind merely because his client wanted him to do so, that was a serious misunderstanding of his duty.
It was in our view appropriate for the judge to admonish counsel about the tone of the position statement. He also acted appropriately by doing so succinctly, and in a way that drew a line before he moved on to the substance of the application. We have to say, however, that we do not think that his rebuke was well expressed. Although it is never easy to assess how things are said from a written transcript, the words used by the judge convey the impression that he felt personally affronted: that was not appropriate. As for his mention of the BSB, it is fair to say that the judge did not say that Mr Uddin’s conduct merited a report (and we do not believe that it did) but only that he would report him if he did the same again. But it was, for the reasons set out above, inadvisable for him to mention a possible reference to the BSB in the course of the hearing.
Although we believe that the incident could have been handled better, we consider it to have been a limited incident, best characterised as an over-reaction to what was in our view a gratuitously offensive position statement.

and in relation to the cross-examination of the Guardian

As we have seen, the parties before us were agreed that instance (8) was the most serious of the instances on which the mother relied. It is important to start by analysing exactly what went wrong.
The starting point is the judge’s querying of whether in his question to the guardian Mr Uddin had accurately summarised an earlier answer she had given. The question began:
“Now, yesterday in evidence you said, and please correct me if you find me to (inaudible) in any way, that A did suffer trauma when he was moved away from [the mother] to the care of [the father] leaving behind …”
It was at that point that the judge intervened to say that he had not heard the guardian say that, though a little way into the exchange he said in terms that she had not done so.

Because of the way things developed, the judge did not specify exactly what it was in Mr Uddin’s formulation that he believed was wrong. When Mr Uddin eventually put the question again the guardian said that she did not believe that she had used the word “trauma”. As the transcript shows, she was wrong about that, and to that extent Mr Uddin’s question accurately reflected her evidence. But it is not clear to us that that was the judge’s point. Mr Uddin’s formulation was in fact inaccurate in a different way, because it suggested that the guardian had attributed the trauma to A being moved “to the care of [the father]” whereas she had referred only to it being caused by the loss of his mother and extended family. The difference is only slight, and it is fair to say that Mr Uddin had not finished his question when the judge intervened and he may well have been going on to refer to that aspect too (as he did when he eventually put the question again); but even if so his introduction of a reference to the father arguably carried the implication that the guardian had said there was something about the father’s care that caused trauma. It may well have been this perceived inaccuracy that the judge was objecting to. In any event, at this stage there was no more than a possible misunderstanding of a kind which sometimes occurs in the course of cross-examination, and no-one is to be criticised.
Mr Uddin responded to the judge’s intervention by saying:
“What would you like my Lord to do, not– for me not to even ask the question because your Lordship has not heard it?”
That was in our view disrespectful and impertinent. The correct response from an advocate when his recollection of the evidence is questioned by the judge is to seek to clarify the position, most obviously by establishing exactly what the issue is and asking that the judge’s note be compared with those of counsel and solicitors. His further response “Well, let us hear what she says then, my Lord” also has a confrontational ring, at least as it appears in the transcript.

Thus far the criticism is entirely of Mr Uddin. But it is clear that his disrespectful response (or responses) caused the judge momentarily to lose his temper. Even without the tape, it is plain that his response (“Do not talk to me like that”) was angry – and that is confirmed by the guardian’s recollection recorded at paragraph 121 – and his replies in the course of the following exchange, culminating in the observation that Mr Uddin was coming close to being reported to the BSB, show that he did not immediately recover his poise. That exchange in its turn clearly unsettled Mr Uddin and caused him too to become heated – “I deserve respect”, “can I have it affirmed that you will not talk to me in that way?”, “I will not be spoken to in that way by anybody”. Although the judge tried to close the incident down and return to the evidence, Mr Uddin would not at first do as the judge asked. He requested a break, which the judge refused. Although Mr Uddin resumed his questions to the witness, he obviously remained troubled, hence his “personal statement” a few minutes later.
This was clearly a regrettable incident. It was started by Mr Uddin’s disrespectful response or responses, for which the judge was fully entitled to admonish him. However, the way that the judge did so raised the temperature and clearly unsettled Mr Uddin. With the benefit of hindsight, we believe that he should have taken up the suggestion of a short break for “cooling-off”. Instead, he warned Mr Uddin that he was getting close to being reported to the BSB. We have already observed that it is generally inadvisable to warn of the possibility of a reference to the BSB in the course of the hearing, and that was particularly so here when feelings were running high.
Miss Ancliffe submitted that the judge’s intervention had led the guardian to wrongly disavow her earlier reference to A having suffered trauma by having been moved from her mother’s care. That may be the case, even though the judge himself did not focus on that word, but it is in truth impossible now to know. Ultimately, it does not matter. We are not concerned as such with the effect of the judge’s intervention but whether the incident to which it led gives rise to a reasonable suspicion of bias on his part. However, we should say that we do not consider that the guardian’s revisiting of the issue had a material impact on the outcome. She was a professional witness well able to express her considered opinion and her subsequent answer, set out at the end of paragraph 117 above, described in more precise terms how A had been affected by the move from the mother.
CONCLUSION ON INSTANCES (3) & (8)

It will be seen that we have some criticisms of the judge’s response in relation to both these instances, and in particular instance (8). However, the question on this appeal is whether what he said on those occasions would lead a fair-minded and informed observer to consider that there was a real possibility that he was biased against the mother. We do not believe that it would. In neither case was his conduct gratuitous: on the contrary, he was reacting, albeit inappropriately, to disrespectful conduct on the part of Mr Uddin. These were two short-lived and isolated episodes in separate hearings, the second of which lasted several days. They are just the kind of incident which may arise in the course of highly-charged proceedings but which, as we have said above, a professional judge will put to one side when assessing the merits of the case. As noted at paragraph 47 above, in his eventual judgment the judge said that the exchanges between him and Mr Uddin had had no effect on his decision-making. Of course that statement itself cannot be conclusive, but it is consistent with what the fair-minded and informed observer would expect of a professionally trained judge and there is nothing to suggest that it was not the case here. There is no complaint of any other inappropriate interchange between the judge and Mr Uddin. We refer also to paragraph 95 above. The mother and her legal representative were given a fair opportunity to put her case, and the mother was allowed to adduce extra evidence. At the conclusion of the hearing, the judge handed down a judgment in which he rejected a number of the proposals put forward by the father. All the evidence is that the judge reached his conclusions following the August 2021 hearing in a fair and balanced way, and there is no reason to suppose that he would not do so in the remaining stages of the case.
Having been critical of some of Mr Uddin’s comments, we should record our impression that, despite the evident professional difficulties he was facing, he represented his client tenaciously and effectively.
OVERALL CONCLUSION

In relation to both groups of instances, we have concluded that they would not lead the fair-minded and informed observer to conclude that there was a real possibility that the judge was biased against the mother. For the avoidance of doubt, that remains our view if all seven instances are considered cumulatively. It is for those reasons that we concluded that there was no basis on which the judge should have recused himself and that this appeal should be dismissed.

(As a sidebar to the case, one of the grounds of appeal which did not particularly cause the Court of Appeal trouble was the claim that the Judge’s remarks during mother’s evidence of “I am writing that down” were indicative of bias, and the Court of Appeal said this:-

There is no substance in the complaint about the judge’s taking of notes or his references to his notebook during the hearing. It is entirely a matter for a judge to decide what notes to take of the evidence. Neither counsel nor anyone else in court is in any position to assess what a judge is writing down. It is not unknown for a judge to indicate to counsel that his line of questioning is not helpful by putting down his pen. This is an example of the disclosure of judicial thinking which, as Sir Thomas Bingham MR observed, is sanctioned in the English tradition. Criticising a witness’s answer, and recording the criticism in his notebook, is a legitimate expression of scepticism which, to use Sir Thomas’s words, “is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be”. In this case, the judge’s references to the notebook during the mother’s evidence were made in the course of appropriate challenges about her reasons for reporting allegations to the police which he had found to be fabricated.

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Jolly hockey sticks, or “It’s not recusunal…”

Posted on December 17, 2020 by suesspiciousminds

I always love a case about recusal, it threw up for example the delicious joy that was a High Court Judge cross-examining counsel about the Judge’s own lost luggage Judicial baggage | suesspiciousminds

This one is private law. A District Judge (DJ Wylie) had conducted a finding of fact hearing (the mother had made allegations of violent behaviour against the father, the Court heard the evidence and made decisions about what had happened, called ‘findings of fact’)

W (Children: Reopening/recusal) [2020] EWCA Civ 1685 (15 December 2020) (bailii.org)

Two findings were made, and the other two allegations were not made out. The father was later convicted for one of the matters set out in the first finding made. The case would then move to evidence, arguments and decisions about contact and possibly where the children would live.

The father, however, made an application for a re-hearing. It was decided that this application for a re-hearing ought to be heard by District Judge Wylie, which would be the usual course of events.

What was less usual though, is that DJ Wylie recused herself from the hearing and it went before His Honour Judge Duggan

At that hearing, father was in person, and mother was represented (although she was paying privately for her lawyer, which becomes important later).

All that the mother and father knew of DJ Wylie’s situation was that she had recused herself for personal family reasons. It seemed, but one can’t be sure, that HHJ Duggan knew a little more than that.

The Judge raised the issue of recusal and its impact on the findings. There were two broad possibilities – one that DJ Wylie having had reason to recuse herself would not sit on the case in future, and the second that if there was something that meant that she shouldn’t or couldn’t hear the case in the FUTURE then didn’t it follow that the work she’d done up to that point should be redone?

The father’s application for a re-hearing had a very high legal bar to cross, but as the Judge explained to him, an application that DJ Wylie having recused herself from part 2 of the case ought not to have done part 1 and the case should be re-heard as a result of judicial bias was probably an easier argument to make and succeed with. For the mother’s part, counsel explained that having paid privately for her representation, she would be substantially financially affected by having to run the fact finding hearing all over again, and importantly that nobody really knew what DJ Wylie’s reasons were for withdrawing.

HHJ Duggan decided that there was no suggestion of actual bias, but that an independent observer would consider that if a Judge couldn’t hear part 2 of a case for some personal conflict, then what they had done at part 1 might also be under doubt, and that thus the finding of fact hearing should be re-heard before another Judge.

The mother appealed, and the case went before Jackson LJ.

In the meantime, the mother’s lawyers wrote to the Court asking three very proper questions:-

  1. What was the ‘family connection’?
  2. At the finding of fact hearing in February 2020, had the Judge been aware of it?
  3. If so, why wasn’t it raised with the parties?

The Court replied, though very very late in the day (The DJ gave the Court the reply in July, the Court sent it to the parties in NOVEMBER! just before the appeal)

  1. The Judge’s son, and the mother, are members of the same hockey club. On social media, the Judge’s son and the mother follow one another.
  2. The Judge had not realised this until June 2020, well after the finding of fact hearing
  3. if the Judge had realised, she would have raised it with the parties.

At the appeal, the mother’s case was that the process before HHJ Duggan was flawed (the mother and father had not known the reasons for recusal, or what had been known by DJ Wylie at the time) and that HHJ Duggan had applied the wrong test in law.

As to recusal for the appearance of bias, Ms Bentley submitted that the Judge framed the test wrongly. The question is not whether a reasonable observer would be concerned that justice has not been seen to be done; the question is whether the reasonable observer would conclude that there is a real possibility that the judge was biased

The Court of Appeal said this:-

n my view, once the District Judge decided to decline to hear the case on the basis of recusal, she should have ensured that the parties were formally notified of her reason for withdrawing from the case. This could have been done at the time of the hearing before the Recorder. Had he been in a position to inform the parties of the facts so that they were in a position to respond, they may well have been content for the case to continue in front of another judge, as had already been contemplated. But as it was, they were left in the dark and both parties asked the obvious question “Why?”, the father ahead of the hearing before the Judge and the mother afterwards.

t is understandable that the Judge was troubled by this odd position and clear that he was acting with the best of intentions. At the same time, it was necessary for him to approach the matter systematically. The starting point was that the listed application was the father’s application to reopen certain findings of fact. There had been no regular process of recusal by the District Judge and there was no appeal before the Judge. In these very unusual circumstances, the fact that a party had not appealed was not a bar to the Judge raising the issue himself, but in doing so he needed to acknowledge that a decision to set aside findings on the basis of apparent bias was one that could only be taken in an appellate capacity. Procedural steps could have been taken to achieve this, but the issue was not addressed and it is not clear what capacity the Judge was acting in.

That procedural difficulty might not be insuperable, but there are other reasons why the Judge’s unexpected decision to set aside all of the findings on the basis of apparent bias on the part of the District Judge was, I regret, both wrong and unfair:

(1) The Judge was not in a position to take a decision about apparent bias: the decision calls for an informed observer, which supposes knowledge of the basic facts. He should have put himself in a position to inform the parties about the District Judge’s reasons for wishing to recuse herself so that they were in a position to respond. He instead referred only to the existence of a family connection, which they were in no position to assess. Consequently, they were not only unable to put their case about the District Judge’s withdrawal but, more seriously, they had no meaningful way of addressing the new and radical proposal to set aside her findings altogether. This process was not fair to either party.

(2) As to the legal test for apparent bias, the Judge was right to say that one must put oneself in the position of a reasonable observer who is not involved in the case. However, he was mistaken in stating that the test is whether the observer would be concerned that justice had not been seen to be done, when the correct question is whether the observer would conclude that there was a real possibility that the judge was biased, which is a stronger thing

(3) Finally, the Judge’s conclusion that the District Judge’s findings were infected by apparent bias is not supported by any sound reasoning. This was the sort of happenstance community tie that should be disclosed to parties by a judge who is aware of it, but would not ordinarily lead the reasonable and informed observer to conclude that the judge could not try the case fairly. In this case the matter was put beyond argument by the fact that the District Judge did not discover that her son and the mother knew each other until months after she had made her decision.

HHJ Duggan’s decision was therefore overturned, and the findings made by DJ Wylie restored, father’s application to reopen them being refused.

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Lost suitcase Judge admonished by Court of Appeal (but not biased this time)

Posted on June 16, 2016 by suesspiciousminds

Some of you might remember the case where a High Court Judge, involved in a big money commercial trial where British Airways was a party started to conduct his own inquiries of BA’s Silk into what had happened to his suitcase which BA had lost on a flight.

 

If you haven’t, then I suggest you read it, because it is a cracker.  (It isn’t my writing that makes it funny, the situation is just ludicrous)

https://suesspiciousminds.com/2015/07/29/judicial-baggage/

 

If you are unaware of the previous history with this Judge and the Court of Appeal, here is another to read

http://www.bailii.org/ew/cases/EWCA/Civ/2007/720.html

 

[The Judge had been involved in communication with partners of a law firm about an employment opportunity for himself, those communications had broken down and the Judge had sent an email to the Senior Partner expressing considerable disatisfaction and annoyance. When that firm next had a case before him, they invited him to recuse himself and he refused. The Court of Appeal decided

 

It may well be that the judge became somewhat carried away in the heat of the argument. But for the reasons I have given, I would hold that his attitude throughout, from the emails at the end of May, during the hearing on Friday and in his judgment show that the test for apparent bias is satisfied. As the reviewing court, this court is in a position to form its own view. I have concluded that in all the circumstances, a fair-minded and informed observer would conclude that the judge was biased against AG and its partners, including Mr Howell. It was for that reason that I concluded on Monday that the appeal should be allowed.

 

But if you can, read the judgment, because the transcript of the poor barrister trying to make the recusal application and the Judge getting crosser and crosser is quite remarkable]

 

Following the BA suitcase debacle , the Judge’s conduct attracted quite a bit of attention in the Press, including an article written by Lord Pannick of Blackstone Chambers. Lord Pannick has been involved in some very intriguing cases that I’ve written about on the blog – often involving overseas Royalty or diplomats, and has also been a trenchant critic of the legal aid reforms, so I like him a great deal.  [In fact, he was in this very case in this blog article https://suesspiciousminds.com/2014/06/09/a-court-may-look-at-a-king/  ]

 

 

  • On 3rd September 2015, an article (“the Article”) appeared in The Times newspaper with the headline “A case about luggage that carries a great deal of judicial baggage”. It was written by Lord Pannick QC (a member of Blackstone Chambers) who had, at an earlier stage of Mrs. Harb’s claim, represented the Prince on his CPR Part 11 (sovereign immunity) application. The Article stated:

 

“On July 22, 2015, Mr Justice Peter Smith stood down from hearing a complex commercial case in which British Airways is a defendant. The airline asked the judge to recuse himself after a dispute about what happened to the judicial luggage on a trip home from Florence. How we laughed. But the case raises serious issues about judicial conduct that need urgent consideration by the Lord Chief Justice. …

The judge sent a number of emails to the chairman of BA complaining about the incident. He said there was “plainly a deliberate decision to leave a whole flight’s luggage behind”. He suggested that lucrative commercial freight may have been loaded “at the expense of passengers who could go to hell at the expense of profits.” BA applied to the judge to recuse himself because the case against the airline that he was hearing raises allegations similar to those he was making, and conclusions similar to those he was asserting, in the correspondence.

The transcript of the recusal application is extraordinary. Jon Turner, QC, for the airline, began by politely stating his client’s concern. The judge intervened: “Right, Mr Turner, here is a question for you. What happened to the luggage?” Mr Turner responded that his clients would deal with such a personal complaint in the ordinary course of business and not in these proceedings. The judge was not satisfied: “In that case, do you want me to order your chief executive to appear before me today?”

Mr Turner patiently replied (his submissions were a model of courtesy and focus in very difficult circumstances) that if the judge would permit him to develop his argument he would contend “that that would be an inappropriate mixture of a personal dispute…”. The judge interrupted: “What is inappropriate is the continued failure of your clients to explain a simple question, namely what happened to the luggage?” After a lot more of this, the judge reluctantly agreed to stand down from the case. He said that there were no grounds for BA’s application but its “attitude” left him with no alternative.

There are a number of troubling features about this unhappy episode. First, the transcript repeatedly confirms what the judge refused to acknowledge: that his personal irritation (perhaps justified) was affecting his judicial responsibilities and made it impossible for him fairly to hear the BA proceedings. The judge said in his judgment that he wanted answers from BA simply because if there were an innocent explanation for the delayed luggage, then he could put the incident to one side and hear the case. But BA’s concern was the strong allegations and concluded views expressed by the judge on personal issues similar to those raised in the litigation. In any event, if BA had offered an explanation for his treatment, was the judge to rule on its adequacy?

Second, there is the inexcusably bullying manner and threats: “What has happened to the luggage? … I will rise until 12.45 and you can find out… Do I have to order you to do it, then?… I shouldn’t make any preparations for lunch because you are going to be sitting through.”

Third, there are the judge’s arrogant comments concerning the decision of the Court of Appeal in 2007 to remove him from an earlier case in which he had been unable to recognise that his personal interests made it inappropriate for him to sit in judgment. Mr Turner, QC, referred to the case for the legal principles. Mr Justice Peter Smith responded that he had “no regret” about his decision, but “plenty of regrets about the way in which the Court of Appeal went about their decision”, but he was “no longer surprised by what happens in the Court of Appeal”. That was a case where Sir Anthony Clarke, MR, described Mr Justice Peter Smith’s conduct of the proceedings as “somewhat extraordinary” and “intemperate”. Sir Igor Judge added that Mr Justice Peter Smith’s conduct of the hearing demonstrated that he “had become too personally involved in the decision he was being asked to make to guarantee the necessary judicial objectivity.” Mr Justice Peter Smith was not listening.

On hearing about this latest episode, no one at the bar or on the bench would have said, “What, Mr Justice Peter Smith? Surely not?” Litigants are entitled to a better service than this. The reputation of our legal system is damaged by such behaviour. The Lord Chief Justice should consider whether action to address Mr Justice Peter Smith’s injudicious conduct has, like his luggage, been delayed for too long.”

After that article (which remember, was complaining about a Judge acting injudiciously, and blurring his judicial functions with his personal circumstances or views) appeared, the Judge wrote to the Head of Blackstone Chambers

  • By a letter dated 1st December 2015 (“the Letter”), the judge wrote to one of the two joint Heads of Blackstone Chambers, Mr. Antony Peto QC, in these terms:

“I refer to our conversation a couple of weeks ago. I am disappointed not to have heard from you.

The quite outrageous article of Pannick caused me a lot of grief and a lot of trouble. I will be taking that up with the requisite authorities in due course.

You said that you would get back to me and you have not. This has meant even more trouble for me because his article has been used as the basis for several lay people to make complaints about me. Fortunately he has never appeared in front of me so his opinion is not worth the paper it is printed on. It has caused me great difficulties in challenging it but fortunately again I have letters of support from no less than 24 Silks, 4 High Court Judges and 1 Court of Appeal Judge all of whom appeared in front of me and do not share his views of my abilities and the way I perform in Court. Some of the letters have been extremely critical of Pannick’s article. Others have commented adversely in terms I would not wish to print.

The article has been extremely damaging to Blackstone Chambers within the Chancery Division.

I am extremely disappointed about it because I have strongly supported your Chambers over the years especially in Silk Applications. Your own application was supported by me and was strongly supported by me to overcome doubts expressed to me by brother Judges concerning you. I have supported other people. It is obvious that Blackstone takes but does not give.

I will no longer support your Chambers please make that clear to members of your Chambers. I do not wish to be associated with Chambers that have people like Pannick in it.”

Unfortunately for the Judge, although Lord Pannick has yet to appear before him post article, other members of his chambers did, on this case. The letter emerged as part of the appeal.

Joshua Rozenberg’s piece about Lord Pannick’s article and the Judge’s response are very worth reading.

http://www.lawgazette.co.uk/analysis/comment-and-opinion/a-judge-needs-judgement/5050805.fullarticle

Anyway, the case has now come before the Court of Appeal, who were no doubt sharpening their pencils and rolling up their sleeves in readiness for this one.

Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 (16 June 2016)

http://www.bailii.org/ew/cases/EWCA/Civ/2016/556.html

 

The Court of Appeal granted the appeal for other reasons, so did not technically have to give a judgment on the bias point that had been raised, but in the unusual circumstances of this case, you can see why they would. They say that the Judge’s behaviour was regrettable, but did not satisfy the test of bias.  (some readers might find that surprising, so I will include the totality of their judgment in this regard)

 

 

  • There is no dispute as to the test for appearance of bias. In Porter v Magill [2002] 2 AC 357, Lord Hope said at para 103:

 

“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.”

 

  • The Letter has assumed significance in this appeal because the Prince was represented at the trial by Mr. Ian Mill QC and Ms. Shaheed Fatima QC, both of whom were (and still are) members of Blackstone Chambers. It led to the Prince amending his grounds of appeal to add a fifth ground alleging apparent bias.
  • The following particulars of alleged apparent bias are relied on. First, a fair-minded and informed observer would conclude that there was a real possibility that the judge became biased against the Prince after the publication of the Article because it was critical of him and he knew that the Prince had been represented by Lord Pannick and was continuing to be represented by Mr. Mill and Ms. Fatima. Secondly, the content of the Letter would cause such an observer to conclude that there was a real possibility that the judge harboured a personal animus against all members of Blackstone Chambers. Thirdly, the observer would conclude that there was a real possibility that the judge’s apparent bias against Blackstone Chambers might have affected his decisions in relation to this claim because, as a matter of timing, the Article preceded (a) the date on which the draft judgment was sent to the parties (21st October 2015), (b) the date on which the judgment was handed down in its final form (3rd November), and (c) the date on which the judge determined costs (9th December). Fourthly, the observer would conclude that there was a real possibility that the judge was biased because he refused to correct a material inaccuracy in the draft judgment even after it had been drawn to his attention. The particular inaccuracy relied on is the judge’s failure to correct the statement at para 106 of the judgment that “it was not put to the claimant” that she had been aware of the Prince’s capacity as the agent of his father, King Fahd. Fifthly, the observer would conclude that there was a real possibility that the judge had been biased against the Prince because his judgment is in key respects inconsistent with the evidence, the inherent probabilities and, in particular, his questions and observations during the trial. There was a change of stance by the judge after the hearing which it is impossible to explain except by attributing bias to the judge. This submission is founded on a detailed analysis of the judge’s interventions during Mrs. Harb’s evidence. These are said to demonstrate hostility by the judge towards her and incredulity about her evidence at that time. Sixthly, the observer would conclude that there was a real possibility that the judge became biased against the Prince in view of his change of mind regarding the explanation given by the Prince during the trial for not attending to give oral evidence. This is the subject of the fourth ground of appeal.
  • It is necessary to have in mind some key aspects of the chronology. The starting point is that on 23rd July, after the conclusion of the evidence, the judge asked the parties whether they wished him to give an indication of his provisional views. In response to their request that he should do so, he said:

 

“on the evidence at the moment I am of the provisional view that there was an agreement as the claimant alleges. However, the question of the capacity of the agent I find very troubling at the moment, the capacity of the agreement. I suspect, I have not looked into it, there is some law about whether or not an agent, [where there] is an undisclosed principal, can assume personal liability under the contract.”

 

  • The parties then made their closing submissions and the judge reserved judgment. He dictated his judgment during the last week of July and first week of August. On 5th August, a written note was submitted on behalf of the Prince commenting on the authorities relied on by Mrs. Harb in relation to the agency issue. The judge says that he dictated a short addendum to the relevant section of the draft judgment relating to the agency issue, but that the draft was not otherwise materially altered.
  • He handed the tapes to his clerk for typing later in August. On 21st August, there was a further hearing before the judge to purge the Prince’s contempt for failing to attend the hearing. The judge said that he had hoped to release his judgment in draft form that day. He was on leave between 2nd and 16th September. As we have already stated, the Article was published on 3rd September. The judge’s clerk started typing the judgment on 6th October. She believes that she completed transcribing the tapes on 14th October. She says that she printed off a hard copy of the judgment for the judge to check and approve and that she made the amendments required by him on 19th October. The draft judgment was circulated to the parties on 21st October. It was handed down on 3rd November.
  • The judge spoke to Mr. Peto QC in about mid-November and complained about the Article. Having not received an answer from him, he wrote the Letter on 1st December.
  • To meet the point that the judge had indicated a provisional view in favour of the claimant before the parties made their closing submissions and before he drafted his judgment, Lord Grabiner says that the judge made some amendments to his draft judgment after reading the Article and before handing down the judgment. We do not know the nature of the amendments. We do not know what the judge’s thinking was in relation to this case after the publication of the Article. In short, he submits, the fair-minded observer would consider that there was a real possibility that the final judgment was influenced by the Article, if only by the judge’s refraining from making changes that he might otherwise have made.
  • More broadly, in his oral submissions Lord Grabiner illustrated his case in this way:

 

“If I were a client and I was using a Blackstone Chambers barrister to argue a case for me and these facts were drawn to my attention, I would be very concerned indeed about who the trial judge was going to be. If I were told the whole of this story, my reaction to that—and I am simply saying that as a reasonable client, given the knowledge of all the facts—the question for this court is: what would be the reaction of that reasonable client?

In my submission that is susceptible of only one answer. He would say—particularly if he were a foreign client who the reason that he comes here in the first place is because he holds the English court system in such high regard. To be given this story, he would be astonished and he would say ‘Well I must say I hope there’s some other judge who can hear my case’, and he would be right” (Transcript 1/107-108).

 

  • In response to Lord Grabiner’s submissions, Mr. Hollander makes a number of points. First, although he accepts that it is possible for a bias for or against an advocate to be sufficient to give rise to a case of apparent bias against the client, of its nature this is likely to be exceptional. It should be borne in mind that the judge has sworn a judicial oath.
  • Secondly, the Letter was a complaint in relation to an article by Lord Pannick, and not against Mr. Mill or Ms. Fatima. These are two of 100 self-employed barristers practising at Blackstone Chambers. They are not in partnership. Nor is there any suggestion that Mr. Mill or Ms. Fatima had any involvement in the writing of the Article. If the appellant’s argument were accepted, it would follow that in any case at any time in which any of the 100 barristers of Blackstone Chambers appeared before Peter Smith J, the fair-minded and informed observer would take the view that the client could not expect a fair trial because of the prejudice of the judge through the advocate’s membership of Blackstone Chambers. That would be the case irrespective of the advocate’s lack of involvement in the Article or the date of his or her joining those Chambers. The fair-minded observer would not take such an extreme view.

 

 

[I am obviously not a fair-minded observer, because I did take that view…]

 

  • Thirdly, what irked the judge and provoked him into writing the Letter was the failure of Mr. Peto to provide a considered response to his oral complaint some two weeks earlier rather than the Article itself.
  • Fourthly, there was no change of mind by the judge in his assessment of Mrs. Harb’s evidence. The informal indication at the close of the evidence that, subject to the agency issue, he was minded to accept that there was an agreement “as the claimant alleges” is a complete answer to the allegation of change of mind.
  • In summary, Mr. Hollander submits that it is fanciful to suppose that, in these circumstances, the fair-minded observer would consider that there was a real possibility that the judgment that was handed down on 3rd November was infected by bias as a result of the Article.
  • In his letter to the claimant’s solicitors dated 12th February 2016, the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed. It is to that question that we now turn.

 

Shocking and disgraceful is very strong stuff to say about a Judge’s behaviour.

 

  • As we have said, the legal test is not in doubt: see para 54 above. We would, however, emphasise two important points. First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The “real possibility” test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias: see Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416 at para 2 per Lord Hope. As Lord Hope also said in Porter v Magill at para 103, the “real possibility of bias” test “is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias” (emphasis added). We mention this because it demonstrates that the approach urged on the court by Lord Grabiner is incorrect. The court does not ask whether a litigant who is being represented by a member of Blackstone Chambers and knows of the Article would be content to have his case heard by Peter Smith J. We have little doubt that most, if not all, litigants represented by a member of Blackstone Chambers, knowing of the Article, would prefer to have their case heard by another judge. We are prepared to accept that some, indeed many, might have very strong feelings on the subject. But the litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business. Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded.
  • The facts of Helow illustrate the point well. The petitioner was a Palestinian refugee living in Lebanon. She claimed asylum in the UK on the ground that she feared that, if she were returned to Lebanon, she would be attacked by Lebanese and Israeli agents on account of her Palestinian ethnicity and political opinions. Her claim was refused by the Secretary of State, whose decision was upheld by an adjudicator sitting in Glasgow. Her petition to the Court of Session was dismissed by the Lord Ordinary, who was a member of the International Association of Jewish Lawyers and Jurists, whose magazine had carried a number of extreme pro-Israeli articles. The petitioner sought to set aside the Lord Ordinary’s decision on the ground that a fair-minded and informed observer would have concluded that there was a real possibility that she was biased by reason of her membership of an association which was actively antipathetic to the interests with which the petitioner was identified. The House of Lords dismissed the appeal. In doing so, it conducted a detailed examination of the facts to ascertain the nature and significance of the Lord Ordinary’s membership of the association and its published aims and objectives. The House also said that it could be assumed (and took into account) that the judge was able to discount material that she had read and reach an impartial decision according to the law. We expect that the petitioner would have been very unhappy that her petition had been determined by the Lord Ordinary. No doubt she would have preferred a judge who had no involvement with a body like the association. From her subjective point of view, it might have appeared that there was a real possibility that the judge had been biased. But the test is an objective one and the focus is on the fair-minded informed observer. The approach advocated by Lord Grabiner fails to draw that critical distinction.
  • It also fails to take account of the important point that, even if a judge is irritated by or shows hostility towards an advocate, it does not follow that there is a real possibility that it will affect his approach to the parties and jeopardise the fairness of the proceedings. From time to time, the patience of judges can be sorely tested by the behaviour of advocates. Sometimes, a judge will overreact and unwisely make an intemperate comment. But judges are expected to be true to their judicial oaths and not allow their feelings about an advocate to affect their determination of the case they are hearing. The informed and fair-minded observer is to be assumed to know this.
  • Secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances and it is for the court to make an assessment of these: see Competition Commission v BAA Ltd and Ryanair Ltd [2010] EWCA Civ 1097 per Maurice Kay LJ at paras 11 to 13 and the authorities cited there. It is common ground before us that the relevant circumstances in this case include all the facts set out at paras 57 to 59 above, although some of these were not in the public domain. It was held in Virdi v Law Society [2010] EWCA Civ 100 that the hypothetical fair-minded observer is to be treated as if in possession of all the relevant facts and not only those that are publicly available. Stanley Burnton LJ gave a number of reasons for this conclusion at paras 43 to 48 of his judgment. This reasoning is binding on this court. In any event, we are satisfied that it is correct.
  • With these introductory comments in mind, we can now deal with the allegation of apparent bias in this case quite shortly. We start by saying that we do not accept the submission of Mr. Hollander that the Letter was merely a complaint about Mr. Peto’s failure to respond to the judge’s earlier oral complaint. It is true that the third paragraph complains that Mr. Peto “said that you would get back to me and you have not”. But the rest of the letter is about the “outrageous” Article and his reaction to that. It is impossible to describe the Letter as confined to a complaint about Mr. Peto’s failure to respond.
  • We are prepared to assume that the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But for the reasons we have given, the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.

 

Let me just quickly try to count the number of angels dancing on the head of this pin. An informed and fair-minded observed would conclude there was a real possibility that the Judge was biased against all members of Blackstone Chambers, but NOT that this would affect the outcome of any hearing in which they were involved. Okay….

 

  • But there is a further reason why this ground of appeal must fail. The assessment of whether an informed and fair-minded observer, having considered the facts, would conclude that there was a real possibility of bias depends on an examination of all the relevant facts. It is fact sensitive. In our view, the facts in the present case show that the possibility that Peter Smith J was actuated by bias against the Prince is unrealistic. We accept the submission of Mr. Hollander that the chronology of events is very powerful. The judge indicated in open court immediately after the conclusion of the evidence that he was of the provisional view that “there was an agreement as the claimant alleges”. This was despite his (at times) aggressive questioning of Mrs. Harb. The only caveat he entered was in relation to the agency issue. But his concern in relation to that issue seems to have had nothing to do with the credibility of the witnesses. Rather, at that stage it concerned a question of law as to whether an agent may be liable where there is an undisclosed principal. That may be an elementary question (as Lord Grabiner suggested), but that is neither here nor there.
  • The critical point is that the question whether a binding agreement was concluded at the meeting on 20 June 2003 was at the heart of the case. It turned to a large extent on the credibility of the oral evidence of Mrs. Harb and Mrs. Mustafa-Hasan and the witness statement of the Prince. We are not persuaded that there is a real possibility that the judge changed his mind about their evidence after reading the Article. It is true that the judge could have amended his draft judgment after reading the Article so as to make findings favourable to Mrs. Harb which were not contained in the original draft. But the judge said that the only amendments that he made were to deal with the note on the agency authorities and otherwise the amendments were not material. We see no reason to disbelieve this and we did not understand Lord Grabiner to submit that we should do so. More fundamentally, we think it fanciful to suppose that the judge made major changes to his assessment of the evidence simply as a reaction to the Article or that his decision on the agency issue owed anything to a bias against the Prince. There is no evidence to suggest that he did so. In our view, the informed and fair-minded observer would not conclude that there was a real possibility that the judge behaved in this way.
  • For all these reasons, regrettable though the judge’s conduct was in writing the Letter, we reject the allegation of apparent bias.

 

 

Whilst Judges can get things wrong and make mistakes, we do have a system that allows those mistakes to be put right on appeal.  (Even then, we probably don’t get everything right, and not every mistake is corrected and not every appeal succeeds)

 

 

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

Posted on December 29, 2015 by suesspiciousminds

 

 

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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I am sailing, I am sailing – judicial recusal

Posted on October 12, 2015 by suesspiciousminds

 

Given how much fun the last case about judicial recusal was to write about, I was pleased to see a new one.

 

https://suesspiciousminds.com/2015/07/29/judicial-baggage/

 

This one, Mackay v Mackay 2015, relates to what is presumably a big money divorce. As the amounts of money are discussed as £X million and £Y million, we can’t be sure exactly how much money, but a decent estimate is that it is at least two million, and probably quite a bit more.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2860.html

 

In this case, Holman J was made aware of a situation.

 

I personally have had no prior involvement in this case whatsoever prior to today. Very early in the hearing today, Mr Valentine Le Grice QC, who appears today on behalf of the husband (but does not act for him generally in these proceedings), said that there were certain facts that he, Mr Le Grice, had been informed about that required to be drawn to my attention in case they impacted upon the appropriateness of my dealing with this case at the substantive hearings. There has been no suggestion, nor could there be, that I should not deal with this directions stage of this case today. I was somewhat surprised to hear that, since the full names of the husband simply do not impact upon me at all and, to put it bluntly but colloquially, I have simply never ever heard of him before. Further, when the husband came into court, he is not somebody who, frankly, I have the least recognition of, or the slightest recollection of ever having met; nor, indeed, do I have the slightest recognition of the wife, who is also in court.

 

My interest was massively piqued here. If the Judge doesn’t know the names of the parties, and doesn’t recognise their faces, under what scenario could there possibly be a suggestion that the Judge might have to consider whether it was appropriate for him to continue?   (I have to confess that the idea of some sort of Eyes Wide Shut masked ball scenario came to mind, but of course it isn’t that)

I am a very open judge and I have never concealed, for instance by entries in “Who’s Who” and Debrett’s “People of Today”, that one of my recreations is sailing. I was told that the husband is also keen on sailing. I have been told that he thinks that in the more distant past he has competed in boats racing against boats in which I myself was also racing. Whether or not that is so is, frankly, completely irrelevant to the situation with which I am now faced. However, I was also informed that the husband knew that I am a member (as I am) of a certain sailing club. He is not a member of that club. He is a member of another sailing club of which I am not a member, but the question was raised whether, through my membership of the sailing club, I might know or have friendship with certain sailing friends of the husband.

 

Certainly the fact that at some point in the past, the husband might have seen Holman J’s catamaran, or what have you, either sail off into the distance or whistle past it at a rate of knots during a race is neither here nor there.

Whether they might, as fellow afficiandos of the sail, have some mutual friends, is a possibility.

  1. A list containing 14 names was then produced to me. It is right to say that I recognised as names every name on that list. The majority of the people named I do not personally know at all. One or two of the others on the list I know very slightly or have met at some stage in the past. None of that, frankly, impacts on me at all. However, there is one name on the list which for the purposes of this judgment I will call “AB” (although those are not the person’s actual initials). I was told that he is somebody whom the husband knows well. I was told that, in the past, there have been business dealings between, or involving, the husband and AB. I was told that the husband currently meets AB about once a month and met him as recently as about two weeks ago. I was told that in the past AB has stayed at these parties’ villa in the south of France whilst participating in a sailing event.
  3. On behalf of the wife, Mr Nigel Dyer QC said on instructions that she did not appreciate that, and doubts whether, the true strength and extent of the connection between the husband and AB is as great as has been described by Mr Le Grice. Without hearing oral evidence on the point, which would be disproportionate and extraordinarily invidious, I have to take the state of affairs as being as described by Mr Le Grice.
  4. AB is not someone whom I would describe as a close personal friend of mine. He is, however, someone whom I have known for many years. There is, undoubtedly, friendship between us, friendship also between him and my wife, and friendship between me and his wife. He and his wife are people whom I and/or my wife meet from time to time in the sailing social context, and we and AB have numerous other mutual friends in common.
  5. The question that arises is whether that connection of a shared mutual relationship with AB is such that I should not have further involvement in this case. The expressed position of Mr Le Grice on behalf of the husband was that he was merely drawing these facts to my attention so that I should be aware of them. There was no application by Mr Le Grice that I should recuse myself as a result of them.
  6. The position of the wife, after Mr Dyer had had an opportunity privately to discuss the matter and take instructions from her, was that she was not concerned about this mutual relationship and that she did not apply that I should recuse myself

 

Well, that’s that then. The father knows AB fairly well, and AB also knows Holman J fairly well. Neither father nor mother say that this intersection would make Holman J unsuitable to hear the case. That’s that.

 

Aha! Not quite.  If you’ve been following the Appleton v Gallagher divorce case, you may have picked up that there is something of a schism in the High Court about divorce and publicity.   On the one hand, represented by Mostyn J, is the school of thought that there should be no publicity in divorce proceedings unless the case itself represents case law and that divorcing celebrities or millionaires should not have their innermost financial affairs set out by the Press just because they are getting divorced. On the other hand, represented so far chiefly by Holman J, is the transparency camp, which is publishing the details in judgments and thus the Press have access to it.   The Appleton v Gallagher case is going up to the Court of Appeal to see who might be right.

http://www.familylaw.co.uk/news_and_comment/appleton-v-gallagher-and-ors-2015-ewhc-2689-fam

 

If you are a millionaire or celebrity who wants privacy then, at the moment, you might well prefer that your divorce is not dealt with by a pro-transparency  Judge, or one who you think might be pro-transparency.

 

The Wife makes this implied motivation explicit.

 

  1. The position of the wife did, however, go further than that. One of the applications that was issued by the husband on 11th September 2015 and returnable today was for orders to do with privacy. He sought orders that the hearings in October and February should be heard not only in private, but with the press and media excluded; and, further (most unusually in my experience) some advance order as to the terms in which any judgment might ultimately be couched. To exclude the press even from a hearing held in private is these days a strong step, and one which can only be taken in tightly circumscribed circumstances provided for in the relevant rules and practice direction; but it is known at the Bar that I am a judge who favours as much openness as possible in all court proceedings. Mr Dyer, frankly, speculated that the purpose of the husband in even referring to the possibility of overlapping friendships was a device deliberately aimed at causing me to recuse myself.
  3. It is, indeed, of the utmost importance that judges are very astute to spot, and not be trapped by, attempts to manipulate the identity of a judge for whatever purpose. Obviously, there may be judges who are believed to make high awards or low awards, and it is only too easy for a party who is seeking a low or a high award respectively to try to manipulate the position so that that judge is unable to hear the case. Similarly, it would, indeed, be intolerable if parties could manipulate the position so as to obtain or avoid, according to where their interests lay, a judge who favours openness in legal proceedings as opposed to secrecy. I am very alive to that risk.
  4. Unquestionably, if nothing had been said today about this shared interest in sailing and the possibility that there may be some overlapping friendships, then I would have continued to deal with this case and there could not have been the slightest difficulty. The fact is that the point has been raised. The fact is that it has been identified that amongst the friends or associates of the husband is this person, AB, who is also a friend of mine.

 

(In short, is this sailing issue, a well-disguised attempt at forum shopping?)

 

  1. The leading authority on the circumstances in which a judge should recuse himself probably remains Locabail (UK) Limited v Bayfield Properties Limited and others [1999] EWCA Civ 3004, a judgment of the court consisting of the then Lord Chief Justice, Master of the Rolls and Vice-Chancellor. The situation with which I am faced today is not one that falls within the principles which are the focus of that judgment. There is no question in this case of my having any kind of interest in the outcome of these proceedings and, in my view, no question in this case of any possible objective or apparent bias. Indeed, at paragraph 25 of their judgment in that case, the Court of Appeal were at pains to list many circumstances upon which, at any rate ordinarily, no objection could soundly be based. But at paragraph 21 of the judgment there is reference, albeit passing, to a judge recusing himself, “If, for solid reasons, the judge feels personally embarrassed in hearing the case.” Further, the broad approach at paragraph 25 is as follows:

    “In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case.”

  2. I have given very careful consideration indeed to this matter. Apart from some obvious situations where I actually knew a party concerned, I can only recall one occasion in the over 20 years in which I have been a full-time judge, in which I have felt the slightest need to recuse myself for considerations of this kind. In that case, I had a long-term friendship dating back to university with the brother of the husband in the case. Although the brother did not feature at all in the case, it did not seem to me appropriate that I should hear it. This case is more remote than those facts, but I have decided that I do, or might, “feel personally embarrassed” in hearing this case.
  3. I wish to stress that I believe myself to be an independent-minded and fearless judge. I do not doubt my ability to be detached and objective in decision-making. But the context of this case, as I have outlined above, does, or may, involve making a judgment about the integrity or probity, and possibly the very honesty, of this husband. I do not yet know much about the facts, nor, of course, how the evidence may turn out. But, at any rate at its highest, the wife’s case will involve a proposition that the husband deliberately failed to disclose the discussions that he was having for the sale of his company at that much greater value, and may well involve the proposition that, at some stage or another, he deliberately lied or, certainly, deliberately suppressed the truth. If there is a common friendship with AB, I do feel that it could be a source of personal embarrassment to me in my relationship with AB if I had to find that another friend of his had acted in a fraudulent, devious or untruthful way.
  4. There is the further consideration in this case that, currently, a two-stage hearing is envisaged, with some months between the first and second stage. Undoubtedly, during that interval, there will be occasions upon which I will be meeting AB, since, as I have said, he is a friend whom I do meet from time to time.
  5. It seems to me that what I have described does amount in this case to “solid reasons” why I personally, as I do, feel personally embarrassed about further involvement in this case. For those reasons, I must, as I now do, recuse myself from any further involvement in the case after today.

 

It seems a shame to me that we may be moving towards a scenario where a Judge can’t have interests, hobbies or pastimes outside of the law, for fear that they may bring them into a position where someone they met at “Jam Club”,  “Abseilers Anonymous” or simply someone who shares their love of “Yacht Rock” might be a friend of a future Party.

 

mmmm.... smoooth

mmmm…. smoooth

 

 

[I know, I had a perfect opportunity to crowbar in a photo of Nicole Appleton, and I decided instead to use a photo of people pretending to be Hall and Oates.  I did really want to use the Nicole Appleton photo, but then a voice in my head said  “I can’t go for that (no can do)” ]

 

The weakest recusal I’ve ever seen in real life was a Judge who recused himself from what was going to be a really desperately boring hearing on the basis that one of the parties had a job as an insurance salesman for Norwich Union (you can feel the dullness of this case seep out) and the Judge concluded that he would be potentially embarassed as he had once received an unsolicited telephone call from someone trying to sell him Norwich Union insurance and had put the phone down “more abruptly than perhaps was reasonable”, and it could not be excluded as a possibility that it was the Party in question.  If you can suitably anonymise them, I’d love to hear weak recusal decisions or even applications…

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Judicial baggage

Posted on July 29, 2015 by suesspiciousminds

 

This one isn’t a family case, so you don’t have to read it at all.  Which, reading between the lines, means that I’m writing about it because it is funny.

 

Emerald Supplies Ltd v British Airways 2015

http://www.bailii.org/ew/cases/EWHC/Ch/2015/2201.html

 

This is some commercial litigation, which was being dealt with by Smith J in the High Court.  The facts of the case seem to be that there are 300 claimants (as a class action) who are suing British Airways.

 

One might get the sense from the opening remarks that the Judge lacked some enthusiasm for trying this case.

 

  1. I have been the nominated judge in this case since November last year. I have been involved in the case since March of last year. When this case first came in front of me in March of last year, I suggested to the parties very early on that it was appropriate to have a nominated judge to deal with the hugely complicated interlocutory applications which arise. When I said so, I said I was not bidding for the case, because no judge really would look upon this case with enthusiasm because he or she would be in a no-win situation, as this case has demonstrated.
  2. Since then I have heard numerous application, made numerous rulings. There are currently two outstanding, I think, appeals against some of my decisions. There is a CMC listed for three days next week. There is a separate hearing listed in October for a strikeout of the Bau Xiang, of other litigation and various other matters. There have been huge interlocutory orders, circulating mostly around the attempts to come up with some form of redacted decision that the European Commission made as long ago as five years now, but which is still not published, and my last recollection is that it was not promised before 2020. A point which I probably met with indifference, and probably half the Bar before me as well.

 

 

It is what happened next that catapulted the case into the realms of legal curiosity.

When you initially read the next twenty paragraphs of the judgment, you think to yourself – what a curious decision, for the Judge to set out the details of the Claimants case in the first person.  It is all  “I did this” and “this happened to me” and “The effect on my that”.  A peculiar stylistic choice, you think.

 

It is little like  the jarring effect of Jay McInerney’s decision to write “Bright Lights Big City” in the unorthodox second person, so that one keeps reading sentences like  “You sneak into a fashion show in an attempt to find Amanda”  and saying to yourself, “no I didn’t.”

 

And then after a short time, it dawned on me that the Judge is not actually here setting out the claimant’s case, he is instead setting out in judicial fashion the history of his own ongoing dispute with British Airways who have lost his luggage.   At length.

 

  1. On 30 April, I booked a return ticket to Florence with the first defendant. On 6 July, I flew to Florence, together with my wife, due to return on 10 July. On 10 July, as I have set out in my emails, the flight was delayed for two hours without any explanation. Six people were then summoned to the departure desk and were told that they were bumped off the flight. It turns out that they were the lucky ones, because they got their luggage back then, unlike anybody else in the flight.
  2. The rest of us were then rushed to the aeroplane. Somewhat intriguingly, as I have said in my email, we were sitting right next to the plane while it was refuelling for 20 minutes. It might be a standard practice in Florence, I don’t know. It might be a standard practice for the accompanying fire tender to arrive after the refuelling is completed. Anyway, we were then put on the plane and the pilot said that they had been moved to another runway and the load had had to be adjusted because of the crosswinds, and that was it.
  3. We arrived at Gatwick, hung around in the baggage claim, as people do at Gatwick, for 45 minutes and then we were told to go to Global Recoveries, where we were told for the first time that the entire flight’s luggage had been left behind. No explanation, no representative, nothing. Nothing from BA. Nothing from Vueling who provided the flight.
  4. I saw the distress that lots of people suffered as a result of that; and I contacted BA customer relations, who simply said: it was a Vueling flight, you will have to take it up with Vueling. That is all they said.
  5. Vueling were no better. In fact, they were worse, for the reasons I have said in argument. Vueling refused to acknowledge my communicating with them until a computerised individual number went onto their system. As I said earlier, it never did. The luggage arrived spontaneously and without warning on Wednesday last week.
  6. I signed my emails as my judicial capacity to alert the Chairman to the fact that this was not merely an issue of a disgruntled consumer. For reasons which I set out below was essential that his office knew about the proceedings and those conducting the proceedings knew about the complaint. I also advised him to contact the lawyers conducting this litigation on BA’s behalf.

 

The Judge did not get an answer to his grievance, despite having played the “do you know who I am?” card.

Unwise people, who are hasty and unfair might consider that if BA’s customer service department can’t resolve the lost luggage of a Judge who  (a) tells them that he is the Judge and (b) that he is the Judge currently dealing with some really big litigation against BA, what hope is there for anyone else?   Those unwise, hasty and unfair people might wonder how the hell a Customer Service department doesn’t immediately move heaven and earth to get that luggage found.   Why, you cynical bunch. The answer is that BA Customer Service department provides exactly the same stellar service to all customers on a completely egalitarian philosophy, without grace or favour.

 

The Judge goes on

This is not an issue over luggage, however. It never has been

[hmmm]

 

 

12. I was concerned about as Mr Turner QC rightly says, BA’s conduct in dealing with that flight — or Vueling’s conduct, which as far as I can see BA take responsibility. They are in the same group of companies, my contract was with BA, BA charged me and I got a BA flight number — if it was not explained, it might be something that is strikingly similar to some of the allegations in this case.

  2. The reason I was concerned really ought to have been blindingly obvious, although some of the submissions by Mr Turner QC today would suggest otherwise. The situation is that I do not know how a plane departs with all of the passengers’ luggage left behind, unless that is a deliberate decision. It is an easy enough question to pose and it ought to be an easy enough question to answer. We are now 12 days from the flight and I have no explanation, and Mr Turner QC and the team who instruct him have deliberately refused to enquire, to provide me with an answer, praying in aid a desire to separate what they call a private dispute from this judicial dispute. This is not possible but could have been easily resolved had BA and its advisors wished it. This if correct was similar to some of the allegations in this case. If correct I would have had to recuse myself as I made clear in argument. BA’S FAILURE TO ANSWER
  3. BA must know what the position is. I am promised some form of answer, by Mr Turner QC, in the normal course of events with expedition. Well, I am 12 days down the line and if those simple questions cannot be answered in 12 days with expedition, I really feel for other people who have the misfortune to fly with BA. It is unexplained.
  4. Equally, I do not see how the pilot can take off and not know the luggage isn’t there. Equally, I do not see that the ground staff can conduct themselves in the way they did with us and not know that the luggage was not going.
  5. In my email to the chief executive, which was the only way forward, having been rebuffed by customer relations, I said that I didn’t see how there was any logical explanation for those.
  6. I remain of that view. Of course, I do not operate airlines. There might be a logical explanation. I am surprised, if there is a logical explanation, that it hasn’t been forthcoming in the last 12 days. I do not believe there is a logical explanation. I believe that the passengers’ luggage was deliberately bumped off for a more profitable cargo.
  7. I hope BA can write back, if they were to write back and tell me that that is not so, because if that is so, my investigation will carry on in a private capacity — where that ends up, I don’t know yet, but it will — which I will pursue with the vigour for which I am known, because I am no longer involved in this case.

 

 

At this point, I am saying that if a TV company want to commission a show about a (highly fictionalised and not in any way real)  vengeful High Court Judge who simply will not rest until he gets to the truth of what happened to his luggage, I think it has legs. I’d cast Jack Nicholson.   Let’s call it  “Case Closed” .  I want to watch Smith J battle and find his baggage.

 

[* When I was about ten, I’m sure that I saw a TV show that featured one of those clever dogs, like Littlest Hobo, or Boomer. But this dog was about an Army German Shepherd and the opening dialogue said that this dog was “wrongly accused of a crime he didn’t commit, now he travels the country searching for the evidence that will clear his name”, which even at ten years old, I thought was a ludicrous premise for a TV show.  “Cracking the case”  /  “Baggage Control”  “Unexpected item in the baggage area”is far better. 

 

I’ll do the voiceover crawl.  “In thirty years as a lawyer, Justice Coltrane never lost a case. But now BA have lost his, and they’re going to find out what happens when you stand in the way of Justice”    oh, how about  “His bags got checked in, and now something doesn’t check out. ”   or  “They put a tag on his suitcase and then they lost it. But now he’s lost it,  he’s gonna put a tag on their toes. ]

Again, unwise, hasty and unfair people might be saying “Jeez, if that’s the way that BA treat a Judge when he wants an answer to what happened to his luggage and has people in Court in front of him who can’t give a straight answer, I’m sitting with my valuables in my lap for the whole flight”.  Tsk, tsk, you hasty and unfair people.

 

An application was made for the Judge to recuse himself.   It is somewhat hard to see how a Judge who has said that in his personal dispute with BA,  ” I believe that the passengers’ luggage was deliberately bumped off for a more profitable cargo. ”    could continue.

 

But I underestimated the determination of Smith J.  He argues it out at length, pointing out again that this is not actually about his suitcase, it is about a resolution of how his suitcase came to be lost.  [I suppose the 300 claimants may have been thinking that it was actually about their claim, rather than a judicial trip abroad which didn’t work out, but Claimants, Schlaimants…]

 

  1. REASONABLE OBSERVER
  3. I do not believe for one minute that the reasonably minded observer, which is the test, as Mr Turner has reminded me of, would think that merely because I have raised issues over the non-delivery of my luggage of itself should lead to the possibility of bias.
  4. I believe a reasonably minded observer would see a Judge with a problem trying to resolve that issue and finding the parting question being obstructive and unwilling to address the issue and find a solution. A simple dispute as to the luggage cannot possible be grounds for recusal. However BA and its solicitors have simply escalated the problem almost immediately.
  5. As I have said in argument, it has been open to BA in this case simply to damp the fires of this dispute immediately, by coming up with an explanation of an operational nature as to why the luggage was not sent. They have not done it despite me giving them the earliest opportunity to do so.
  7. REACTION BY BA AND ITS SOLICITORS
  8. The solicitors and the person apparently instructing them have adopted a three wise monkeys approach which I found, frankly, astonishing. The reason I conclude they do that is because they don’t want to know the answers, because it might affect them. And the reason why BA have not replied, I conclude, is because there has been some kind of operation designed to maximise profits at the expense of their regular customers. Further I am satisfied they want to exploit this situation to pressure me into coming off the case.
  9. Judges spend all the time drawing conclusions from people’s actions; and the like; the taking off with no luggage and the knowledge of the pilot, I find it impossible to believe that if those instructing Mr Turner QC wanted to, they could not have found out what the answer was to this in good time. And having seen me on Monday, it would have been perfectly easy for them to write and say, “Thank you for drawing it to our attention. We have spoken to the operations and the luggage had to be left behind, we regret, for this, this and this”, and that would have been the end of the matter. I had of course brought it to their attention as soon as practicable on the Monday.
  10. But they didn’t do that. Almost within a matter of hours of the meeting, they decided that I should recuse myself.
  11. Now, I do not accept that the correspondence justifies that application. And I am afraid to say that it is, in my view, an opportunistic application, made by a party that has wanted to get me off this case before.
  12. I would remind the parties that even before the case was allocated to me, Mr Turner expressed a view in open court spontaneously that his clients did not think I was capable of dealing with the CMC in this case because it represented difficult issues of competition law, of which It was alleged I had no experience. His client’s major difficulty was that I had been an allocated judge for four years in the Competition Appeals Tribunal, although I had not actually sat on any cases. But presumably if the Lord Chancellor thinks I am competent to sit there, that really ought to be enough, even for Slaughter and May, but apparently it isn’t.
  13. And when the parties finally followed up the suggestion that they apply to nominate a judge, they actually wrote [the Chancellor] should not appoint Mr Justice Peter Smith. That was an unfortunate letter for them to have written because it held a gun to the Chancellor’s head, but as the Chancellor rightly observed, there are no competition issues of significance left in this case now. There is either a common law claim for conspiracy, and in that regard I am probably the most experienced judge in the division dealing with those cases, and there are issues as to damages that might flow from an already admitted breach of competition law.

 

 

If you thought the application to recuse was so-so before those remarks  (and really? Did you? )  then I’m fairly sure that at the point where the Judge says that the application for recusal is a conspiracy theory because BA are running some sort of behind the scenes arrangement where they routinely ditch passengers luggage so that they can carry commercial freight for profit, is the point where the reasonable observer would think “nope, you need to step aside now”

 

  1. So the question then is: what should I do? Well, Slaughter and May wrote to me on Monday, requiring me to confirm immediately that I would recuse myself, failing which they would make an urgent application to the Court of Appeal. This litigation is complex enough, without those distractions. It is of no interest to the other parties, who have all had to come here today, to have a proper application made and a decision made. And that has a cost consequence which will probably be irrecoverable, and it is a matter of great regret to my mind that the parties have been inconvenienced for no apparently good or acceptable reason. It would not be appropriate for a recusal application to be acceded to as a result of an exchange of private correspondence.
  2. This would lead to a waste of a lot of judicial resource time in addition to the parties it will also slow progress of the case which I have been attempting to progress. I am afraid BA are not in my view really interested in progressing the matter expeditiously for obvious reasons.
  3. I however cannot allow my presence in the case and its difficulties to distract the parties from this case. And therefore, regretfully, I feel that I have no choice, whatever my feelings about it, but to recuse myself from the case, and that is what my decision is; not for the reasons put forward by BA, but for the reasons that I have said.
  4. So I will recuse myself. I will vacate the hearing next week; and I shall not direct it to be fixed before the most convenient date as suggested. I shall direct that the parties shall attend on 2 October for directions from the newly appointed judge as to the further conduct of this case. I shall also require the parties to make an immediate application to the Chancellor to appoint a substitute judge; and to tell the Chancellor that I have directed that the first hearing of the case by that newly appointed judge should take place on 2 October.
  5. I will, if necessary, adjourn the application that BA issued, I think, yesterday for a strikeout in the Bau Xiang litigation as well, to be considered as part of the other matters which the judge will be required to do. And I will make no order as to costs.
  6. This is a regrettable but necessary decision caused in my view entirely by BA’s attitude and determination to achieve a result which is nothing to do with the problem. It is a regrettable feature that some litigants now regard a recusal application as one of the tools they can deploy in aid of their case. BA has finally achieved its aim. Neither of their attacks was in my view justified but ultimately they were successful for the reasons given.

 

So there you have it. BA succeeded in removing a Judge from the case whom they perceived to be biased. But it was a Pyrrhic victory, since the Judge was able to use that recusal application to publish a judgment setting out just what he thought of them, and as you can’t sue for defamation for anything that happens in Court or reporting what happened in Court, any national newspaper can report everything that the Judge said about his views about BA (as long as they don’t go further and say that they agree with them)

 

Seriously,  Jack Nicholson’s agent should really talk to me. I think we have a hit here.   [I’m not ruling out Liam Neeson for the role, I think he’d be great for this – but Liam’s agent, you need to know that Jack is interested, so you’d better make a commitment, or the part will be gone]

 

 

 

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I saw mummy kissing santa claus

Posted on July 18, 2012 by suesspiciousminds

 

An imaginary judgment, dealing with what happens when a key piece of evidence is found from an unwelcome source

 

 

This matter comes before me as an Appeal from a decision of the Family Proceedings Court to make Care Orders and Placement Orders in respect of three young children, who in time honoured fashion, I will label A, B, and C. The eldest is just four, the youngest is six months old, born within these proceedings. The mother of all three children is Miss X. The father of the older two children has played no part in these proceedings. The father of the youngest child is Mr Y.

 

The facts of the case before the Court were relatively straightforward and sadly not uncommon in the cases involving public law applications for children which are being heard throughout the land. The mother of the children was proceeding very well with her care of A and B until she formed a relationship with Mr Y.  Mr Y, although he seemed attractive, kind and attentive, had an unfortunate background, involving convictions for very serious sexual offences against children, he having only just been released from prison.  Understandably, the Local Authority concerned, once they became aware of Mr Y’s background and involvement with the family sought to provide mother with certain advice about the merits of this relationship continuing. Expert evidence was before the Court, and was unchallenged, that Mr Y’s history, psychological make-up and lack of empathy, insight and remorse for his proven past crimes meant that he was unsafe to be around children and that any timescales for treatment were well outside of the children’s timescales and the prognosis in any event was poor.

 

The mother and Mr Y separated, but of course, baby C had been conceived by then.

 

As often occurs in these cases, concerns arose as to whether the separation was genuine, or whether it was, in effect a placatory public gesture to satisfy professionals whilst clandestinely it continued apace. Allegations of this, together with such corroborating evidence as the Local Authority were able to assemble was placed before the Family Proceedings Court and tested appropriately in evidence.

 

Thus far, there is nothing exceptional about the case, and this Court would be exceedingly reluctant to interfere with any findings made by the Family Proceedings Court about the factual matrix of the case or whether the relationship was, or was not continuing.

 

The unusual facet of the case, and the impetus behind this appeal, is that after the parents had given their evidence, but before the Guardian had given hers, the case concluded for the day, with the intention being to reassemble the next day.  One of the three Magistrates who had been hearing the case,  left the Court building and happened upon two adults locked in what can best be described as passionate and tender embrace. It was with some understandable embassment and chagrin that this Magistrate came to the opinion that these adults were Mr Y and Miss X, and that far from having been completely separated and with no intention to spend any time together, as had been their sworn evidence, there was a passion and intensity about the embrace that called that into question.

 

The next morning, the Magistrate concerned, who I will label Miss J, immediately notified the Legal Advisor of this. In that consultation, they resolved that Miss J should not discuss this in any way with the other two magistrates and that the issue should be put to the parties in order that representations could be made about the way forward. The Legal Advisor suggested to Miss J, who took this advice, that she could no longer sit as a Magistrate in resolving this particular case as she was now potentially a witness of fact.  Miss J prepared a short document setting out what she had observed.  It was very plain that Miss J was advised not to discuss the issue with the other Magistrates, and that no discussion of the issue other than the formal representations (and if necessary, evidence) given in Court should take place, to do ones utmost to preserve the integrity and impartiality of the other Magistrates.

 

If I may say so, I think that the Legal Advisor in this case acted very sagely in the most exceptional of circumstances. It is difficult to see what more she could have done.

 

When the document that Miss J had prepared was circulated to the parties, two camps effectively formed. As one might expect,  the mother and father sought an adjournment of the case with there to be a re-hearing at which Miss J could give evidence before a completely fresh bench, untainted by any association with Miss J.  The Local Authority and Guardian pointed out that the case could proceed with two magistrates and that Miss J could give evidence, which would be assessed by the bench with the same impartiality and scrutiny as any other witness and the parents recalled, adding that any other bench that could be assembled in due course to hear the case would be as likely as these two Magistrates to have sat with Miss J as some time or another, it being the nature of the Family Proceedings Court that rather than a fixed block of three Magistrates always working together, there is more of a ‘mix and match’ approach.   The decision was taken to continue, and the parents representatives quite properly registered their disquiet about the unusual situation and that they reserved the right to seek an appeal of any final adjudication, not least because of the wider public interest issues that the case had thrown up.

 

In relation to the way the Court approached the evidence of Miss J, I can find no fault with that.  A proof of evidence was available to the parties and all had seen it in advance of her giving evidence. It was made plain that she was giving her evidence as a member of the public who had witnessed something (she having left the curtilage of the Court, she was no longer effectively Miss J, Magistrate, at the time, but Miss J, person).  The Legal Advisor ensured that a Turnbull direction was given in Court before the evidence was heard.

I remind myself at this point that the Court of Appeal have previously given a decision in which it was made plain that Turnbull directions on the risks of misidentification of a person is not limited to criminal trials but applicable in a family case where there is eye witness evidence about a specific individual being alleged to do certain things. This particular Legal Advisor was familiar with that case. It is a shame that more people are not.   RE A (CHILDREN) sub nom EH v (1) X LONDON BOROUGH COUNCIL (2) AA (3) REA & RHA (BY THEIR GUARDIAN) (2010) [2010] 2 FLR 661

In all cases such as this, I consider that it is incumbent upon a judge to remind himself in judgment of the precise terms of the passages in R v Turnbull[1977] QB 224 in which Widgery CJ stated at 228:

First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear term the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special
reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a
material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them”. Finally, he should remind the jury of any specific weakness which has appeared in the identification evidence.
“Recognition may be more reliable then identification of a stranger but even then when the witness is purporting to recognise someone whom he knows,
the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. “

 

When the Family Proceedings Court, sitting as a bench of two, made their determination on this factual issue, they took considerable pains to analyse each and every point of the Turnbull principles in their determination. They made the finding that the evidence of Miss J was preferred, following that careful analysis to the evidence of Mr Y and Miss X, and that the couple on the day of their substantive evidence declaring effectively undying separation had been observed in the throes of considerable and lengthy passionate embrace. The Court made other findings about the relationship based on the allegations. I note, and it is of some significance, that two of the five allegations made by the Local Authority about occasions when the parents were suspected to be together were not made out because the Court felt that there was not sufficient evidence to be satisfied about them, and the Court did not make the mistake of conflating the likelihood of  (a), (b) and (c) having been true, just because they had found a significant (d) to be true.

 

In this appeal, no criticism is made of the way that the Magistrates drew up their reasons, nor that they took into account something that was irrelevant, or failed to give sufficient weight to something that was relevant. Clearly, with one eye on the likely appeal and the need in this case because of the circumstances to be rigorous, the Facts and Reasons are an exemplar of their kind.

 

Counsel for the appellant mother, makes effectively one point in this appeal and it is a compelling one. I am grateful that a ‘scattergun’ approach was not taken, but the issue confined to the one which is the crux of the case.  Does this decision satisfy the Sussex Justices case that justice must not only be done, it must be seen to be done.

 

Could the two Magistrates determining the case, no matter how much care and attention they gave the matter and no matter how hard they strove for neutrality and impartiality, really appropriately weigh and sift the evidence without giving a disproportionate weight to the fact that one witness of fact on a key disputed issue had previously been sitting by their side on the case as they heard live evidence?

 

Counsel for the appellant makes the strong case that if this were a criminal trial, and the witness of fact had been a member of the jury who perhaps overheard some material evidence being talked about by a defendant, the jury would be discharged and the case reheard.  The Joanne Frail case, where the juror had been in communication with the defendant on Facebook whilst the jury were still deliberating  was referred to

ATTORNEY GENERAL v (1) JOANNE FRAILL (2) JAMIE STEWART : R v KNOX (2011) [2011] EWHC 1629 (Admin)  as was the case where a juror had been flirting with a police officer giving evidence in the trial

R v (1) JOHN CORT (2) BRIAN FARRELL (2011) [2011] EWCA Crim 1597  and indeed the case where an officer of the Court involved in jury selection had been socialising with members of the jury

R v CHRISTOPHER JOHN BURCOMBE (2010) [2010] EWCA Crim 2818  and R v MICHAEL WILLIAM MCDONNELL (2010) [2010] EWCA Crim 2352 where the jury had searched for information about the defendants on the internet.

 

 

All of which chiefly made me very relieved that I no longer conduct criminal trials, as they seem to be a hot-bed of socialisation, fraternisation and social networking pitfalls, with the court and jury room being more akin to some form of speed-dating evening than the administration of justice.

 

I consider that it is right and proper to draw the distinction here between a juror who has set out to act inappropriately (whether through ignorance or sheer bloody-mindedness) and a Magistate who here happened to stumble into possession of material evidence which made her a witness. Had she endeavoured to follow Mr Y or Miss X and observe them, or visit their home to watch them, then I would be in no doubt whatsoever that her conduct would be reprehensible.  There is, in my judgment, a clear bright line when a person is sitting in a judicial capacity between hearing and testing the evidence that is presented in Court and endeavouring to find out more outside the Court. The latter is not acceptable. By way of illustration, it would be appropriate for a Judge to indicate to the parties that they seek to read a specific piece of research referred to in Dr Jinglebones report, but not to search on the internet for criticisms of Dr Jinglebones or photographs illustrating his vivid social life and partiality towards tequilla. There is a clear, bright line between hearing the evidence that is presented in court and making ones own enquiries, and a Magistrate or indeed Judge would step over that clear bright line at their own peril.

 

However, here it is different. Miss J had not desired or intended to gather evidence, rather it was a matter of happenstance  – in the altered words of Malvolio  “Some are born with evidence, some achieve evidence and some have evidence thrust upon them”.  She turned a corner and saw what she saw and could not unsee it.  Nor could she have ignored it. Nor could this information have rightly been set to one side or supressed. It was material evidence, and it was deeply unfortunate that it was Miss J who happened to fall upon it, rather than the social worker or the Guardian. It could have been worse – it could have been counsel for either of the parents, which certainly would have led to the need to a rehearing with fresh counsel.

 

The appellant makes the second point, arising from this, that even if there is no culpability, the impartiality of the Court is tainted inexorably by one of the tribunal giving evidence. They submit, wisely and correctly, that if this had been a County Court judge who had made the identification, mistaken or genuine, then it would have been impossible to continue the case, and that the parents should not be prejudiced by the mere happenstance that the Family Proceedings Court have three Magistrates allowing for an element of ‘redundancy’ whereby one can drop out and the hearing continue.

 

This is clearly a difficult case, and as the well known axiom has it  (though I have not found authority for it)  “hard cases make bad law”    – the closest authority I have identified arises here :-

 

R v National Insurance Comrs, Ex pp Hudson [1972] AC 944, 966, Lord Reid also observed,
at p 966: “It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think
that they act wrongly in so doing: they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for no one
can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that
overruling such a decision will promote and not impair the certainty of the law.”

 

I am certain that in this case, it was appropriate for the Court to consider the evidence of Miss J, that it was incumbent on them to consider the problems of eye witness identification evidence and give themselves a Turnbull direction, which they did. I am certain that Miss J could not play any part in the decision-making, being a witness of fact, and she did not. I am certain that had she discussed the case in any informal sense after becoming a material witness, the case should be reheard, and I am satisfied that this did not happen. I am satisfied that if Miss J had sought out this evidence deliberately, this would have indelibly tainted the entire bench and the case would need to be reheard, which she did not.  I am satisfied that the Court would have to give very careful and compelling reasons for accepting Miss J’s evidence to remove any lingering suggestion that her evidence was preferred because of her status, and I am satisfied that the Court did so.  I am completely satisfied that the Court were not biased, and that they did everything possible to remove any suggestion or impression of bias.

 

All things being equal, if one had a time machine and could revisit that hearing, I would myself have preferred a decision that the case be transferred to the County Court and for a circuit judge (who would be not associated with miss J) to hear all of the evidence and determine the case. But it is not, of course the role of the appeal court to substitute its own judgment for that of the Family Proceedings Court, but to analyse whether that decision was plainly wrong. It is my conclusion that a spectrum of possible decisions about the way forward existed for the Court – they decided to proceed with a raft of safeguards and in my determination they were not plainly wrong to do so.

 

Should a situation arise in the future where a Magistrate or Judge finds themselves in the unfortunate position of having to give evidence in the same case, however, I would not wish this case to be authority for any principle that they should not recuse themselves. With the benefit of hindsight, a recusal and rehearing would have been a better approach and more in keeping with the principles of R v Sussex Justices,  and one would hope that should this situation ever arise again, a rehearing with a fresh tribunal would be the outcome.

 

I therefore dismiss the appeal.

 

 

 

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