You often cut a lonely figure when acting as an adjudicator. It’s not like being part of a three-party arbitral tribunal, where you have someone to discuss issues with. I suspect it is the same for a judge. Sometimes it feels like the world is against you, no matter how hard you try. At least, I suspect that is how Fraser J felt on Thursday, 21 March, when he received the Post Office’s recusal application, asking him to recuse himself from the Post Office group litigation.
If you aren’t familiar with this case, then read on.
Bates and others v Post Office Ltd
Bates and others v Post Office Ltd is a long and detailed judgment. It is an even more complicated piece of group litigation, the subject matter of which is “highly controversial” and involves over 550 sub-post masters and mistresses (SPMs). In a nutshell, the SPMs used to run branch Post Offices and all used a computer system called Horizon. The claimants’ case is that Horizon contained:
“… a large number of software coding errors, bugs and defects, and as a result apparent shortfalls and discrepancies would, and did, appear in SPMs’ branch accounts.”
This led to “financial, accounting and other shortfalls”, with the result that some SPMs were excluded from their branches, other were suspended and/or their appointments were terminated, some resigned and others were prosecuted for theft, false accounting and/or other criminal charges.
Unsurprisingly, the Post Office strongly defends all of the allegations made against it and maintains that the Horizon system is “robust and can be relied upon”. It says that:
“… in the great majority of cases the shortfalls and discrepancies that arose are explicable by carelessness or dishonesty on the part of SPMs and their staff.”
See, I said it was controversial!
The recusal application
This arose during the “Horizon issues” trial, which started at the beginning of March 2019. It followed receipt of Fraser J’s judgment in the “common issues” trial (which is a mammoth 1,122 paragraphs long), and which he’d heard towards the end of 2018. A third trial (limitation and general issues) is listed for November 2019 and a fourth trial (other issues), is due to take place in early 2020.
Essentially, the Post Office’s position seemed to be that because of the “critical invective and/or harsh criticisms” in the common issues trial judgment, the judge gave:
“… the clear impression that [he] has already formed a firm view on these matters. It is to be expected that this will prevent him from taking an impartial view on the same matters when they are revisited, at subsequent trials, with the benefit of full evidence and disclosure.”
In addition to a number of specific examples given, the Post Office also relied on the:
“… structure, tenor and subject-matter of the Judgment as a whole.”
Those are strong words, particularly when there is the best part of three trials to go.
Legal test for apparent bias
The judgment sets out the “classic test” for apparent bias from Porter v Magill, which 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.”
It also looks in detail at a number of judgments, including Longmore LJ’s judgment in Otkritie International v Urumov (which I’ve looked at before), where he referred to “long and complex cases” and warned that judges should not recuse themselves too readily:
“… otherwise the convenience of having a single judge in charge of both the procedural and substantial parts of the case will be seriously undermined.”
Other cases include Arab Monetary Fund v Hashim, where Sir Thomas Bingham MR had posed a question regarding who the reasonable and fair-minded person sitting in court was, suggesting that it is important to recognise that:
“… the hypothetical observer is not one who makes his judgment after a brief visit to the court but one who is familiar with the detailed history of the proceedings and with the way in which cases of this kind are tried… the court must look to, inter alia, two things: what are the norms or standards relevant to the kind of case before it; and whether, on the facts, the requirements have been fulfilled.”
As Fraser J himself noted, this means the fair-minded and informed observer:
“… is not expected to consider a single element of complex litigation – such as isolated passages in a judgment – and ignore the whole picture.”
Rather, the fair-minded and informed observer should consider “all the relevant facts”.
It is clear that this is precisely what he thought the recusal application was doing, concentrating on isolated passages and taking them out of context. Consequently, Fraser J examines the criticisms leveled at him, and spends the majority of his 302 paragraphs reviewing them against the apparent bias test “with considerable care”. Perhaps not unsurprisingly, he concludes there are no grounds for the test of apparent bias to be made out, and does not think the fair-minded informed observer would reach a different conclusion when everything in the common issues judgment was taken into account.
What do I take from this?
I thought the points made regarding long and complex cases, and who the hypothetical observer is, are points that could apply equally to multiple (or serial) adjudications arising out of the same project.
As I’ve said before, parties should not underestimate the convenience and costs saving of having a single adjudicator appointed in each of those disputes. It may also result in continuity of outcomes, something that doesn’t always happen when the identity of the adjudicator changes. However, changing the adjudicator’s identity may be precisely what the referring party wants, whether because of adverse findings against it previously, or for some other reason. At least it is much easier to change adjudicator than it is to change trial judge.
The interpretation of adverse findings against one party may well be a subjective thing, but I wonder whether it really impacts on the adjudicator’s impartiality as much as the party affected believes. I guess it all comes down to what someone thinks, and it is not whether there is actual partiality, just whether there is the impression of partiality.
One way for an adjudicator to avoid this is to be careful in how they express themselves in their decisions. Clearly using neutral language is preferable, but that may not always be possible, particularly when looking at witness evidence and assessing a witnesses’ credibility. Being aware that what we say may be interpreted differently by both parties is important.
Adjudicators also need to be careful about when they express views to the parties in advance of issuing a decision. We all remember what happened in Lanes Group plc v Galliford Try Infrastructure Ltd. Even if it was overturned on appeal, it remains a cautionary tale to us all.
Finally, sometimes you might not do anything wrong, but still the allegation of bias is made. I’m not sure who remembers the adjudicator in Amec v Whitefriars (Mr Biscoe) being asked to recuse himself because (Whitefriars said):
“… his ability ‘to act impartially and unbiased in this matter has been compromised’ inter alia ‘because you may be liable for some of our clients’ costs’.”
It said that, insofar as it wasn’t able to recover from Amec, it was going to make a claim against him for the legal costs incurred in the first adjudication and in defending the enforcement proceedings (some £128,000) “as damages for proceeding with an adjudication wrongly”.
As Dyson LJ said, that claim would have had no prospects of success because of paragraph 26 of the Scheme for Construction Contracts 1998. Clearly Mr Biscoe did not “succumb to some rather crude bullying”:
“If the threat of proceedings against a tribunal were, without more, to lead to a conclusion of apparent bias, it would be open to a party to undermine the integrity of the Scheme simply by making such a threat… I find it difficult to conceive of circumstances where the threat of proceedings against a tribunal would of itself lead the fair-minded and informed observer to conclude that there was a possibility of bias. But I am in no doubt that the threat that was made against Mr Biscoe would not lead the fair-minded informed observer to conclude that there was a real possibility of bias in the present case.”