Practical Law

Bias and apparent bias is a subject that has cropped up many times on this blog, whether it was an adjudicator “phoning a friend“, an arbitrator (allegedly) being appointed too many times by the same referring party (although that isn’t one of mine!) or a judge getting upset over his lost luggage (who wouldn’t be?).

It seems anyone involved in court or tribunal work is vulnerable to an accusation of it. Therefore, it should come as no surprise that I’m commenting on another example of behaviour that gives rises to the charge.

Bubbles & Wine Ltd v Reshat Lusha

Bubbles & Wine v Lusha started out as a building dispute, with Mr Lusha claiming just under £24,000 from B&W for works at its premises in Moxton Street, London. B&W counterclaimed for delay and defects. Sound familiar?

The matter came before Deputy District Judge Wallis in the Central London County Court for a one-day trial in February 2015. Although the court managed to get through all the evidence, because they were still in court at 6 pm, it was decided that closing submissions would be dealt with in writing. It is what took place next that led to the judge being invited to recuse himself (which he didn’t) and then, eventually to a hearing before the Court of Appeal.

After counsel had agreed to put in written closing submissions, the judge asked Mr Lusha’s counsel, Mr Varma, if he could have a chat about a personal matter. It seems the judge’s daughter had spent time at the chambers of Mr Varma as part of a mini-pupillage and the judge wanted to thank him for the hospitality she was shown.

If the conversation had stopped there, that would have been the end of it (B&W’s counsel, Mr Modha, knew of the mini-pupillage as it had already been disclosed). However, the judge went further, and made some comments about the evidence, which he asked Mr Varma to pass on to Mr Modha (which he did). The following morning the judge also contacted Mr Modha. However, there was a discrepancy in what was said:

• Mr Varma had told Mr Modha that he’d been told that the counterclaim seemed weak and B&W’s case had evidential gaps.
• The judge referred only to the counterclaim’s lack of evidence.

Mr Modha raised the discrepancy with the judge, who assured him that his recollection was as he had already described.

However, the matter was clearly playing on the judge’s mind because the next day he wrote to both counsel saying that he did not feel that the court’s impartiality had been compromised but, if the parties felt differently, he feared he would have to “grasp the nettle” and recuse himself. Mr Lusha was happy for the judge to continue (Mr Varma described it as innocuous), but B&W asked the judge to recuse himself as the private conversation had “trespassed into comment on the ongoing case”, which was inappropriate. At this point, the judge refused, saying he would give his reasons when delivering judgment, which he did (incidentally, he found in Mr Lusha’s favour).

B&W appealed unsuccessfully to a circuit judge on the basis of actual or apparent bias. When the matter came before the Court of Appeal, it was based solely on apparent bias.

Apparent bias

Leggatt LJ reminded us that the modern approach to apparent bias is to ask whether the circumstances of the case would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased (Porter v Magill). Although he concluded there wasn’t apparent bias in this case, it is how he reached that decision that is interesting, especially his comments about the judge’s conduct. They are a reminder to us all that when we handle cases (whether as judges, arbitrators or adjudicators), we need to be:

“… scrupulous not merely to refrain from conduct which will result in [our] recusal but to avoid creating a situation in which concerns about [our] impartiality can reasonably be raised at all.”

This is because cases involve:

“… not just the hypothetical fair-minded observer who has ascertained all the relevant facts but actual litigants who cannot be blamed for lacking objectivity and who will only know the relevant facts if the judge behaves in a transparent way.”

Mistakes the judge made

Leggatt LJ said the judge had made a number of mistakes and it is worth setting them out, if only to illustrate how not to do things going forward (a point Leggatt LJ makes). I don’t really think I need to comment and will let Leggatt LJ’s words speak for themselves.

Firstly, the judge requested a private conversation with Mr Varma in the absence of Mr Modha while the case was continuing:

“It is difficult to think of circumstances in which this would be an appropriate thing to do. It risks fostering an impression of favouritism towards one party’s advocate. It also encourages suspicion in the other party.”

Even worse, the judge did not confine the conversation to personal matters. He expressed views about the merits of the parties’ respective cases:

“… the other party is put at the disadvantage of not having actually heard what was said and being reliant on a second-hand account. It was all the more unfortunate that the trial judge in this case expressed opinions on the merits to counsel for Mr Lusha in the absence of B&W’s counsel when the main comment that he made was to express an unfavourable view of the strength of B&W’s case.”

The judge’s reasons for his conduct were “to put it bluntly – absurd”, since there was no urgency. “Equally unimpressive” was the reason given for why the issue was not raised at the end of the hearing, with both counsel present. The judge said he did not wish Mr Faure (a director of B&W) who was also present to think he had already made his mind up. Leggatt LJ described this approach as “misguided”:

“If a judge has concerns which he or she thinks it desirable to express in order to give counsel an opportunity to deal with them, then the parties, and not just their lawyers, are entitled to know those concerns. There is no space in a trial for communications to take place between the judge and counsel which form part of the decision-making process but of which the parties themselves are not told.”

In fact, later in the judgment Leggatt LJ suggests that it may be proper for a judge to express preliminary views about the strength or weaknesses of a party’s case provided it is in open court, as it can assist counsel to concentrate “on those points which appear to be influencing the judge’s thinking”. Even then though, the judge has to be careful not to give the impression that a final decision has been reached before all the evidence and arguments have been heard.

The judge’s “self-created difficulties” got worse when he gave the impression that he would recuse himself if one party requested it, then refused to do so when asked by B&W to do so:

“It was bound to create a sense of grievance to open the door for a re-trial in that way, only for it then to be shut again in the litigant’s face.”

Leggatt LJ explained why he had set out his criticisms of the judge in such detail, in part to allow lessons to be learnt when errors in case handling are made.

From now on, I for one will be considering very carefully what I say and to whom. As the saying goes, silence is golden!