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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Woolwich Plc v Daisystar Ltd Raja 1 St 2 Nd [2000] EWCA Civ 80 (16 March 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/80.html
Cite as: [2000] EWCA Civ 80
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Case Nos: FC3 1995/6936/A3
FC3 1999/6977/A3
PTA 1999/6980/A3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE ROBERT WALKER
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 16 March 2000
LORD JUSTICE SIMON BROWN
LORD JUSTICE OTTON
and
LORD JUSTICE MUMMERY
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WOOLWICH PLC |
Claimant/ Respondents | |
|
||
DAISYSTAR
LTD |
1st
Defendant/ Appellant | |
Judgment on Application to recuse
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr A. Hossain QC & Mr R. Duddridge (instructed by Ormerod Heap & Marshall of Green Dragon House, 64-70 High Street,Croydon, CRO 9XN, solicitors) for Mr Raja
Mr K. Lewison QC & Mr M. Blackett-Ord (instructed by Slaughter & May of 35 Basinghall Street London EC2V 5DB, solicitors) for the Respondents
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
Judgment having now been given in respect of the three listed applications before the court, it is necessary to return to a particular matter raised before us at the outset of the hearing upon which we ruled at the time and in respect of which we said we would give our reasons later. The matter in question was an objection raised by Mr Hossain QC upon the explicit instructions of his client, Mr Raja, to my Lord, Mummery LJ, sitting on the appeal, having regard to his earlier involvement (as a puisne judge of the Chancery Division) at various interlocutory stages of this convoluted and long-running litigation. My Lord was involved in the proceedings on four separate occasions, respectively on 22 June 1990, 2 June 1991, 20 May 1992 and 10 December 1992. We have transcripts of his judgments on the first two occasions, a note of his judgment on the third occasion, and a reference to his fourth order in Robert Walker J's judgment of 14 June 1995, the judgment under appeal in the present proceedings. I think it unnecessary to describe these four interlocutory proceedings at length. The following summary will suffice.
On 22 June 1990 Mummery J struck out a statement of claim served by Mr Raja and Daisystar on the Building Society. Having explained in some detail why the various allegations made were misconceived, Mummery J said this:
"Read as a whole, the statement of claim bears all the hallmarks of a speculative action. The statement of claim is an amalgam of futile, immaterial and hopeless claims, and of grave allegations of a general character which remain unparticularised to this day, even after requests and orders for particulars had been made. I add that, in a number of respects, it appears that allegations had been made when there was no evidential material available to substantiate them. In those circumstances, allegations such as those relating to alleged sale at an undervalue ought never perhaps to have been made."
Mummery J then turned to the Building Society's application for leave to amend their counterclaim so as to raise allegations of fraud and this he allowed despite various objections, including that of delay, advanced on Mr Raja's behalf. He ruled simply that:
"In my judgment, there is no substance in any of these objections to the proposed amendments."
On 7 June 1991 Mummery J struck out another of Mr Raja's defences and refused to allow proposed amendments to it. He said this:
"In my judgment, it would not be right to allow any of these proposed amendments, for the following reasons. The proposed amendments are substantially a repeat performance of the allegations made in the statement of claim in the [earlier] action. That statement of claim was struck out on 22 June 1990 and leave to appeal against that order has not been obtained. Insofar as the new amendments depart from or add to the allegations which were struck out, they do not significantly improve the case advanced by Mr Raja and Daisystar. Mr Martin, on their behalf, argued that the allegations here are by way of defence and not by way of claim, and that is an important difference, particularly in respect of the various grounds on which it is sought to attack the validity of the mortgages. I reject this argument. The allegations, whether they are made by way of claim or defence, have no reasonable prospect of succeeding in this action."
In the course of exchanges with counsel after judgment, Mummery J said to Mr Martin:
"You have been making what I think are a lot of scandalous allegations which are not relevant to the real issue and I am using scandalous in the legal sense. I mean, you are making a lot of allegations which are never going to get your client anywhere and they are just going to vex the Society."
A little later he said:
"As you know from my judgment, I think you have a very difficult case. You have done your duty as counsel in very tenaciously presenting it."
Leave to appeal against that judgment was refused by Balcombe LJ on 4 September 1991. Balcombe LJ described the various applications before him (which included also an application for leave to appeal against an order of Mervyn Davies J) as "a further chapter in what is rapidly becoming a saga", and observed that: "This litigation has, by any reckoning, grown out of all sensible proportions." That, one may note, was 8½ years ago now.
On 20 May 1992 Mummery J struck out yet a further action by Mr Raja against the Building Society. He said this:
"[Mr Raja] has been trying in three previous actions to make claims against the Society to the effect that the charges were sham and so forth ... These were claimed in a variety of ways in three actions, and all were struck out. Leave to appeal was sought by Mr Raja, but was refused by me and by Lord Justice Balcombe. ... The statement of claim is a repetition of the allegations made in one or more of the earlier actions or allegations which had been comprised in an unsuccessful application to amend. ... In those circumstances it is quite clearly an abuse to allow this action to proceed."
On 10 December 1992 Mummery J gave Mr Raja and Daisystar leave to serve an amended defence to counterclaim which pleaded to and denied the allegations of fraud made by the Building Society against them so that fraud again became a live issue.
So much for Mummery J's involvement in the earlier stages of these proceedings, an involvement which ended, be it noted, over 2 years before the succession of orders in the first half of 1995 by which Mr Raja and Daisystar were made subject to "unless" orders with which they failed to comply with the result that they were eventually debarred from defending and finally had judgment given against them. We have described these 1995 proceedings in our main judgment.
That then is the context in which Mr Raja's objection to my Lord's participation in the present proceedings falls to be considered.
Let me at this stage turn to this Court's recent authoritative and comprehensive judgment in Locabail Limited v Bayfield Properties [2000] 1 AllER 65. The passages most directly relevant to the present challenge are as follows:
"If, in any case not giving rise to automatic disqualification and not causing personal embarrassment to the judge, he or she is or becomes aware of any matter which could arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance." (paragraph 21 on page 76)
"It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. ... a real danger of bias might well be thought to arise ... if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bringing an objective judgment to bear on the issues before him. 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 the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or another, 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." (paragraph 25 on pages 77/78)
As explained in paragraph 86 of the judgment, Vakauta v Kelly was a decision of the High Court of Australia in which the majority held that the first instance judge fell on the wrong side of "an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice."
It is Mr Hossain's submission that Mummery LJ's earlier involvement in these proceedings put him too on the wrong side of the line; that his many criticisms of Mr Raja's pleaded case against the Building Society - a case which the applicants now seek to resurrect - and his expressed view that it was "a very difficult case", similarly, as was held in Vakauta v Kelly, "could threaten the appearance of impartial justice".
I have to say that in my judgment the submission is not merely unconvincing; it involves a substantial misapplication of the Locabail principle to the circumstances of the present case. Paragraph 25 of Locabail (and, of course, Vakauta v Kelly itself) was concerned with the situation arising after a judge in earlier proceedings has reached and expressed pronounced views upon the credibility and/or reliability of material witnesses. Mummery J in this case was never concerned with questions of evidence; he never even heard any evidence. His concern rather was with the pleadings in the case and more particularly with the various abuses of the court's process. Nor, in so far as he adverted to the merits, could it sensibly be suggested that he expressed himself in "such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind". On the contrary, given the remarkable series of proceedings upon which Mr Raja's then advisers were engaged, the terms of Mummery J's judgments seem to me striking in their moderation. When he spoke of pleadings as scandalous, he immediately made plain that he was using the term in its legal sense; when he suggested that Mr Raja had "a very difficult case", that seems to me to have been a classic understatement.
Had Mummery J been assigned to try the action below, there could have been no possible objection to his doing so. In my judgment there can similarly be no objection to his hearing applications for extensions of time and permission to appeal in respect of Robert Walker J's decisions. Any doubt must, of course, be resolved in favour of recusal. To my mind, however, there is no ground for doubt whatever. It may well be, indeed, that by virtue of his past knowledge of these proceedings, Mummery J was a particularly happy choice to sit on these applications - given, of course, that none of his own rulings is even remotely under challenge. It is, however, unnecessary to express any concluded view upon this and I shall accordingly refrain from doing so.
There is one further aspect of all this to which I must refer. As frequently occurs in cases of this sort, Mummery LJ having noticed a day or two before the hearing that he had been involved in earlier stages of the litigation, sought to notify the parties of that fact lest they wished to make any representation upon it. By unhappy mishap, notification reached only the respondent's side and not the applicant's. Thus it was that it was only on the Monday morning of this three day hearing that Mr Hossain learned of the situation and received instructions from his client to make the challenge. As he candidly explained, he had time to do little more than bring to court a copy of Locabail: he had none of the transcripts or notes of Mummery J's long-ago judgments - these were produced by the respondents and had to be copied during the hearing of the objection. This, I accept, was unfortunate, and I would echo the comment made by the court in Locabail that "it is generally desirable that disclosure should be made to the parties in advance of the hearing." I cannot help feeling here that if it had been, and Mr Hossain had had time to reflect upon the position, he might well have discouraged his client from seeking to raise the objection in the first place.
Be that as it may, however, I have not the least doubt that the objection taken - taken, I should note, with conspicuous charm, tact and moderation - was unsustainable and that it would have been quite wrong for the court to yield to it. That is why we ruled as we did and embarked upon the substantive hearing.
LORD JUSTICE OTTON:
I agree.
LORD JUSTICE MUMMERY
I agree.
On first sight of the papers in this appeal I recollected that, when I was a judge in the Chancery Division, I had heard applications in litigation involving a company called Daisystar Limited. My recollection was confirmed on checking my notebooks.
At the end of the week prior to the hearing of the appeal I was provided with a copy of a letter sent by Junior Counsel for the Woolwich stating that, on behalf of the Woolwich, he consented to me sitting on the appeal, notwithstanding that I had previously heard applications in the action whilst sitting as a judge at first instance.
The first that I knew of Mr Raja's proposed objection to me sitting on the appeal was on the morning of the first day fixed for the hearing of the appeal.
I agree with Simon Brown LJ that the objection taken by Mr Hossain QC, on behalf of Mr Raja, is not sustainable, having regard to the nature of my earlier involvement, the issues which arise on this appeal and the relevant principles laid down in Locabail Limited -v- Bayfield Properties [2000] 1 All ER 65.
I should add that, at no time during the hearing of the appeal, have I felt that my previous judicial involvement in some of the interlocutory hearings in this litigation has in any way influenced my views on the issues decided on this appeal.