Tuesday Law Report: Disqualification of judge on ground of bias

3 November 1999 Locabail (UK) Ltd v Bayfield Properties Ltd and another and other applications Court of Appeal (Lord Bingham of Cornhill, Chief Justice, Lord Woolf, Master of the Rolls and Sir Richard Scott, Vice-Chancellor) 17 November 1999

THE COURT of Appeal gave guidance on the question of the disqualification of judges on the ground of bias.

Anthony Mann QC and James Barker (More Fisher Brown) for the plaintiffs in the first and second applications; Hazel Williamson QC (Stephenson Harwood) for the second defendant in the first application and the third defendant in the second application; Andrew Edis QC and Ivan Wolfenden (Bartlett & Son, Liverpool) for the claimant in the third application; Robert Jay QC (Morgan Cole, Cardiff) for the defendant in the third application; the applicant in person in the fourth application; Tess Gill (Solicitor of Inland Revenue) for the respondent in the fourth application; Judith Jackson QC (Dolmans, Cardiff) for the applicant in the fifth application; William Norris QC and Lucy Moorman (Richards Butler) for the interested party in the fifth application; David Lloyd Jones QC (Treasury Solicitor) as amicus curiae.

Lord Bingham of Cornhill CJ, handing down the judgment of the court, said that where a judge was shown to have an interest, which was not limited to a pecuniary or proprietary interest, in the outcome of the case which he was to decide or had decided, he was automatically disqualified.

In other cases, a judge might be disqualified and his decision set aside if on an examination of all the circumstances the court concluded that there was a real danger or possibility of bias.

When members of the Bar were appointed to sit judicially, whether full- time or part-time, they might ordinarily be expected to know of any past or continuing professional or personal association which might impair or be thought to impair their judicial impartiality, and their independent, self- employed status would relieve them of any responsibility for the affairs of other members of the same chambers.

A solicitor who was a partner in a firm was, however, legally responsible for the professional acts of his partners and, as a partner, owed a duty to clients of the firm for whom he or she might personally never have acted, and of whose affairs he or she might know nothing. Whilst it was vital to safeguard the integrity of court proceedings, it was also important to ensure that the rules were not applied in such a way as to inhibit the increasingly valuable contribution which solicitors were making to the discharge of judicial functions. Before embarking on the trial of a civil case, a solicitor should conduct a careful conflict search within the firm in which he was a partner.

No objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge, nor, at any rate ordinarily, on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or previous judicial decisions; or extracurricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn of Court, circuit, local Law Society or chambers.

By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case, or if the judge were closely acquainted with any member of the public involved in the case. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness or found their evidence to be unreliable, would not of itself found a sustainable objection. If in any case there were real ground for doubt, that doubt should be resolved in favour of refusal.

If, appropriate disclosure having been made by the judge, a party raised no objection to the judge's hearing or continuing to hear a case, they could not thereafter complain of the matter disclosed as giving rise to a real danger of bias. It was generally undesirable that hearings should be aborted unless the reality or the appearance of justice required that they should.