REUTERS | Jumana El Heloueh

Bias revisited – keeping your own counsel

Back in June, I wrote about Peter Smith J’s judgment in Mengiste v Endowment Fund for the Rehabilitation of Tigray and others. The post was all about a recusal application and, at the time, I drew parallels between the allegations of judicial bias in Mengiste and a challenge to an adjudicator’s jurisdiction.

Mengiste has recently been before the Court of Appeal. Lady Arden gave the leading judgment and it makes interesting reading, not least because she concludes that the judge should have recused himself because there was apparent bias.

Test for bias

As Lady Arden reminded us, the test for bias is whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the judge was biased (Porter v Magill). The test is to be applied having regard to all the circumstances in the case.

Lady Arden also set out the importance of having an independent judiciary – not only that it is independent but that it is seen to be independent “of any influence that might reasonably be perceived as compromising its ability to judge cases fairly and impartially”. A case of justice not only being done, but also being seen to be done.

Mengiste

In Mengiste at first instance, as well as being critical of the expert, the judge was also highly critical of the solicitors instructing him, whom he held responsible for the expert’s lack of understanding of his duties as an expert. The judge’s remarks included:

“…he had not properly been assisted by the Claimants’ lawyers in respect of his evidence…

…the fault for this lies entirely with the Claimants’ lawyers.”

Harsh words indeed.

However, Lady Arden was also critical of the judge, finding that there was apparent bias stemming from the facts of the case. In the circumstances, she found that the judge should have recused himself. Her reasons for this included that:

  • It was unnecessary for the judge to criticise the solicitors in his judgment when he was evaluating the expert’s evidence. Even if he felt some criticism was necessary, he should have included an appropriate qualification (saying the views were provisional or made on limited information). This would have left “the door open to the possibility that there might be another explanation”.
  • By expressing his criticisms in absolute terms and failing to “leave the door open”, the judge gave the impression of bias because it suggested he would not consider another explanation for the expert’s failings.
  • The judge repeated his criticisms of the solicitors several times and in more than one judgment. He also criticised them for failing to inform him of the recusal application as soon as they had “wind of an application for a wasted costs application against them”. All of this would make a fair-minded observer think there was a real possibility of bias.
  • The fact that the wasted costs application (which the judge was being asked to recuse himself from) was going to rely on the same material, meant that there were “real grounds for a perception that he would have a predisposition to find against the solicitors”.

Even harsher words!

What do I take from this?

Lady Arden’s comments act as a reminder of the importance of adjudicators, arbitrators and judges adopting a neutral stance when criticising a party’s conduct or its evidence (both factual and expert) in a decision, award or judgment. I find neutrality is especially important when I am looking at the time I have spent dealing with hopeless points. Despite how tempting it can be sometimes, it is probably better to bite your lip, to save your criticism and keep your own counsel.

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