England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
(His Honour Judge Peter Goldstone)

		Royal Courts of Justice Strand London WC2 Thursday, 25th January 2001

Thursday 25th January 2001

1. LORD JUSTICE PETER GIBSON: This is an appeal by the defendants, Mr and Mrs Lawrence, from the order made on 12th November 1999 by His Honour Peter Goldstone sitting as a Deputy Circuit Judge in the Watford County Court. The order was made at the end of the trial of a boundary dispute which the judge determined in favour of the claimants, Mr and Mrs Taylor. The Deputy Judge refused the defendants permission to appeal but permission was granted to them by this court (Mantell LJ and Sumner J) on 3rd March 1990 at a without notice hearing.
2. The factual background to the dispute is this. The claimants own a property called "Cetlas" in Farm Road, Northwood, Middlesex. The defendants own the adjoining property called "Highgate". Both properties have houses built in 1955 or 1956. Originally the boundary between the properties was marked only by two wooden posts. The original owner of Highgate, Ian Moore, who remained there until 1991, gave evidence, which the Deputy Judge accepted, that he had put in about six small concrete posts connected by a wire strand from the garden end towards the house. Mr Moore later erected some taller concrete posts and a wooden fence, slotted into those posts, along a line which he described as being "well inside my property". That was to act as a screen. The original owner of Cetlas until 1984 was a Mr Griffiths, with whom Mr Moore got on very well. The land is on a slope and Mr Griffiths decided to level an area adjacent to the boundary with Highgate and at that point to build in concrete what was called a car port on which cars would be parked. Mr Griffiths, as the judge found, built a concrete plinth, as Mr Moore said, to square up the car port. The plinth was placed, as the judge also found, on the Highgate side of the boundary. It encroached some 18 inches. In 1984 Mr Griffiths sold Cetlas to a Mr Watson, and he in 1995 sold that property to the claimants. Mr Moore sold Highgate in 1991 to a Mr and Mrs Millett and they in turn sold that property to the defendants in 1994.
3. On 18th March 1997 the defendants erected a brick wall on the plinth on the basis that it was on their land. The claimants claimed that they had the title to that land and that the defendants were trespassing. These proceedings were commenced in June 1987. The claimants sought the removal of the wall and an injunction to prevent future trespass. They also sought damages. On 2nd October 1998 the claimants amended their particulars of claim, by order of the District Judge, to claim in the alternative that, if they did not have title to the land on which the wall was built, that and certain other land shown on a plan had been in the possession of the claimants and their predecessors in title since about 1956 and that that possession was adverse to any rights of the defendants and their predecessors in title. They claimed a declaration that they are the beneficial owners of the land, including that on which the wall was built.
4. At the trial it was conceded by the claimants that their alternative claim for possession could go back no earlier than to the 1960s. That was because of certain evidence which had been given by Mr Moore. It is clear that if there was adverse possession of the land in the 1960s, it was for a period well in excess of the limitation period of 12 years. The defendants put in a defence, denying the claimants' claim. That defence was settled by counsel; but since June 1999 the defendants have acted in person. His Honour Judge Viljoen heard a number of interlocutory applications in the case, but on 16th August 1999 the evidence of Mr Moore, who was called as a witness for the defendants and who would not be available in November at the time fixed for the trial, was taken in open court before the Deputy Judge. The defendants later made an application to him that Judge Viljoen should be the trial judge, but on 21st September the Deputy Judge dismissed that application. The defendants also applied for summary judgment, but that too was dismissed by the Deputy Judge on 28th October.
5. The main trial commenced on 9th November 1999 and continued over the next two days. On 12th November the Deputy Judge delivered judgment. He identified two issues. The first was whether the defendants had the paper title to the disputed land. He said that he was quite satisfied that the plinth on which the defendants had built the wall was within the boundaries of Highgate and that until the particulars of claim were amended to raise the alternative claim for adverse possession, the claimants' claim was doomed to failure. The second issue was whether the claimants' predecessors had been in adverse possession of the disputed land for more than 12 years. On this the Deputy Judge held that a cause of action in trespass accrued to Mr Moore when the car port was built by Mr Griffiths in the early 1960s. The Deputy Judge further held that occupation adverse to the ownership of the defendants' predecessors in title continued until the 1990s, and that what the claimants' predecessors did constituted adverse possession for a period in excess of the limitation period. It followed that the claimants' claim succeeded. The Deputy Judge ordered the defendants to remove the brick wall and to reinstate the claimants' land. He granted an injunction, restraining the defendants from entering the claimants' land or interfering with it. He awarded the claimants £190 damages. He ordered the claimants to pay two-thirds of the defendants' costs until service of the amended particulars of claim, and he gave the claimants their costs thereafter.
6. When the defendants appeared on 3rd March 2000 before this court seeking permission to appeal, Mantell LJ, in a judgment with which Sumner J agreed, said that the defendants were seeking to argue essentially three grounds of appeal. The first was that the Deputy Judge misunderstood or misdirected himself with regard to the necessary components of an adverse possession claim, and that there was no evidence to show that the possession relied on by the claimants was accompanied by the necessary intention to possess. The second was that because the Deputy Judge before and during the trial had dealings with the solicitors acting for the claimants, there was an appearance of bias. The third was that the Deputy Judge conducted the hearing in an unfair manner, limiting the examination of the defendants' witnesses in a way in which the claimants had not been limited. Mantell LJ regarded all three grounds as arguable, but the third as being of lesser weight. No other grounds of appeal are referred to in the judgment, although six grounds were listed in the notice of appeal. The order of the court simply was that the defendants should have permission to appeal.
7. Before this court Mr and Mrs Lawrence have appeared in person. Mr Lawrence has conducted the argument on behalf of himself and his wife for the most part, although Mrs Lawrence has added some further submissions as well. They have been prepared to confine the grounds of appeal to two main grounds which are within the grounds considered by Mantell LJ.
8. The first ground is that the elements requisite for adverse possession to be established, that is to say of exclusive control and intention to possess, were not established by the claimants at the trial and that they were not even mentioned by the Deputy Judge. It is trite law that for a claim of adverse possession to succeed there must be both factual possession and an intention to possess. The Deputy Judge's judgment can be criticised, perhaps, for dealing with the adverse possession issue compendiously and for not focusing on the individual elements. But it does not necessarily follow from that criticism that his decision on that issue was wrong. It is appropriate to consider whether on the facts he properly reached the conclusion that adverse possession had been made out.
9. The facts as found were essentially these:

(1)In 1962 Mr Griffiths levelled that part of his garden adjacent to the boundary with Highgate, laid concrete on it and built the plinth when making the car port and constructed small posts at the edge of the concrete to support the car port.

(2)Mr Moore, knowing what Mr Griffiths was about to do, erected a fence as a screen on a line inside the boundary of Highgate.

(3)Mr Moore was not bothered by what Mr Griffiths did as that was taking place behind, that is to say on the far side of, his screen. He abandoned interest in the area proximate to the boundary at this point and was content for Mr Griffiths to occupy it if he was so minded.

(4)Mr Griffiths' son, Charles, who was about 17 at the time of the concreting, helped his father, as did his 15 year old brother Richard, with the concreting work. It was Charles Griffiths' belief that the plinth was within the boundary of Cetlas.

(5)The concreted area, including the plinth, was used for car parking by the claimants' predecessors in title.

10. Mr Lawrence challenges the first finding to this extent. He says that it was Mr Moore who built the plinth, which he called a retaining wall. There is no doubt that Mr Moore did put some concrete down in the area of the boundary between Cetlas and Highgate, but it is apparent from the evidence that this was not the plinth. Indeed, Mr Moore himself in his evidence said that he assumed that Mr Griffiths and his sons put the plinth in: see the transcript for 16th August 1999, page 22. That, to my mind, makes it plain that that was different from the concreting work which Mr Moore did, which was to build what the Deputy Judge called a very small minimum sized concrete division to keep soil off his land. In my judgment, it is not possible for this court to interfere with the finding made by the Deputy Judge that Mr Griffiths and his sons did put in the plinth when there was evidence at the trial to support that finding.
11. The question whether a person claiming adverse possession has factual possession falls to be answered by considering whether that person has an appropriate degree of physical control and has been dealing with the land in question as an occupying owner might have been expected to deal with it: see Powell v McFarlane [1977] 38 P&CR 452 at pages 470 and 71 per Slade J. The laying of concrete to build the car port and its use as such in the circumstances that the paper title owner of part of the land has put a fence between the property which he is occupying and the car port, serves, in my judgment, to make plain that factual possession was taken by Mr Griffiths.
12. The question whether the person claiming adverse possession has the requisite intention to possess depends on whether that person intends to possess the land to the exclusion of the world at large, including the owner with the paper title: see Buckinghamshire County Council v Moran [1990] Ch 623 at page 643 per Slade LJ. The proof of that intention will rarely, if ever, be established by direct evidence. The court would regard direct evidence of a subjective intention with suspicion as being self-serving. Rather the intention has to be ascertained from the overt actions of the person claiming adverse possession. The actions of the paper title owner are only likely to be of assistance insofar as they constitute some of the factual circumstances against which the acts of the dispossessor are to be assessed. If the dispossessor believes that he has the right to exclusive possession, it matters not that that belief is wrong. Thus, if Mr Griffiths thought he owned the land in question (and that seems likely in view of the belief of his teenage son) then he would be likely to believe that he had the right to exclusive possession. He could not hold that belief if his actions were done because of the permission of the true owner. In such a case there would be no adverse possession. But the indifference of Mr Moore as to what was being done on the other side of his screen does not mean that Mr Griffiths' actions were done with the permission of Mr Moore. The requisite intention is ordinarily established as a matter of inference.
13. In my judgment, it is proper to infer that Mr Griffiths had the intention to exclude the world, including Mr Moore, from his car port. There is no reason whatever to think that he would have been prepared to share that car port with Mr Moore. The circumstances indicate otherwise. In my judgment, it is therefore an inference which can properly, and should properly, be drawn from the facts as found by the Deputy Judge. It would follow from that that adverse possession was established and that such possession continued for more than 12 years, thereby extinguishing Mr Moore's title to the land in question. For these reasons therefore, I would not accept the arguments of Mr Lawrence that the judge's conclusion on the point was wrong.
14. The second ground of appeal relates to the appearance of bias, which, if established, would mean that the appeal must me allowed. The Deputy Judge, Mr Lawrence points out, was a client of the claimants' solicitors. That fact was not disclosed until the fourth hearing conducted by the Deputy Judge on 9th November 1999. The Deputy Judge did not disclose the fact that at that time he was to meet with persons from the claimants' solicitors on 11th November 1999 to execute a codicil and have it witnessed, that is to say immediately after hearing the closing submissions and the very day before he was to give judgment, and that he was to visit the offices of the claimants' solicitors.
15. Mr Lawrence adds to those points a number of other points. They include that the claimants' solicitors acted for the Deputy Judge first in November 1995 to draft his will and his wife's will; that they drafted a codicil for the Deputy Judge on his instructions in April 1998; that when rejecting the defendants' application on 21st September 1999 relating to whether Judge Viljoen should conduct the trial, the Deputy Judge did not mention his relationship with the solicitors, as he had not done at the time when the Deputy Judge was hearing the evidence of Mr Moore, nor did the Deputy Judge mention that relationship when he rejected the application for summary judgment on 28th October, although it is clear that he was by then aware who the claimants' solicitors were; that the Deputy Judge, in late October or early November 1999, arranged with the private client partner who had drafted the will and codicil that that partner should prepare a further amendment to the wills of the Deputy Judge and his wife and arrange to call on the solicitors to execute the further codicil on 11th November; that although the Deputy Judge at the start of the hearing on 9th November told the parties that the claimants' solicitors had prepared his will and held it, he had not revealed anything further about his relationship with the solicitors; so that when the defendants were asked, as they were, together with the claimants' counsel, whether the relationship that was revealed between the Deputy Judge and the claimants' solicitors was of concern to them and obtained their acknowledgement that it was not, a less than full account had been given to the defendants.
16. Mr Lawrence further points to the fact that on 10th November counsel for the claimants, Mr Cowen, was approached by either the judge, or the judge's clerk, or the usher -- Mr Cowen cannot remember which -- in the area outside the robing room and was told of the judge's intention to impose a timetable for the trial as a whole and was asked to pass on that statement to Mr Lawrence, which Mr Cowen did immediately. That, Mr Lawrence says, was an approach made by the Deputy Judge to counsel for the claimants not in the presence of the defendants.
17. Mr Lawrence further points out that when the visit to the claimants' solicitors took place on 11th November for the Deputy Judge and his wife to complete their codicils, their signatures were witnessed by a partner in the claimants' solicitors and a secretary who had worked in the litigation department for six years and whose initials had appeared on some correspondence in the case. Mr Lawrence made vigorous protests over this. At the conclusion of the judgment he sought the Deputy Judge's assistance as to whether he had the basis of a complaint against the Deputy Judge for not telling the defendants of the Deputy Judge's association with the claimants' solicitors. Not surprisingly, the Deputy Judge did not proffer such advice. But Mr Lawrence has complained to the Lord Chancellor, who has investigated the matter. No doubt on the basis of what the Lord Chancellor was told by the Deputy Judge, the Lord Chancellor, in a lengthy letter to Mr Lawrence dated 7th April 2000, deals with the various matters of complaint, but rejects all of them. However, in that letter - and Mr Lawrence has drawn specific attention to this - the Lord Chancellor says of the occasion when the Deputy Judge, with his wife, called at the offices of the claimants' solicitors:

"He spoke to nobody who had any connection with the case he was hearing, and he has given me his absolute assurance that at no point has he discussed your case, or indeed any case whilst he has been hearing it, with the solicitors."

18. The Deputy Judge has set out in a letter to the Civil Appeals Office his reaction to the complaints of Mr Lawrence. He says that before 11th November he had not met either the partner or the secretary who witnessed his and his wife's signatures on the codicil, that the full extent of the Deputy Judge's association with the solicitors was in relation to the preparation and execution of the will and the two codicils, that he knew no partner or other employee of the solicitors personally, that he did not regard them as his personal solicitors as other firms in the City had acted for him, and that the claimants' solicitors were not his executors, trustees and administrators. He says that the solicitors were instructed because they were a large firm in Watford, where he was sitting, and he wished to save going to the City. He further says that he does not consider that there was any conflict of interest and that at the time when he heard the evidence of Mr Moore, he had no idea who were the claimants' solicitors. The Deputy Judge was a Circuit Judge from 1978 to 1997. The Lord Chancellor authorised him to continue to sit, even though he had reached the age of 73 at the beginning of November 1999. Mr Lawrence at one time was suggesting that the Deputy Judge had a conflict of interest; but that, in my judgment, was unsustainable. It is not suggested that the Deputy Judge was interested in any way in the outcome of the litigation.
19. Mr Lawrence relies on the matters to which I have drawn attention as giving rise to the appearance of bias to the objective observer. In The Director General of Fair Trading v The Proprietary Association of Great Britain, a decision of this court on 21st December 2000, Lord Phillips MR, giving the judgment of himself, Brooke LJ and Robert Walker LJ, considered the law on this subject in the light of the obligation of the English Court to give effect to the right to a fair trial, as embodied in Article 6 of the European Convention on Human Rights. That right is one to a fair and public hearing by an independent and impartial tribunal established by law. This court considered a number of authorities, including R v Gough [1993] AC 646 and Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, as well as Commonwealth authorities and the jurisprudence of the European Court of Human Rights. The conclusion of the court was expressed in the following terms:

"85....the Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.

20. The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The Court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced."
21. It is not altogether clear precisely what was said by the Deputy Judge to the defendants and Mr Cowen on 9th November in the Deputy Judge's room at the start of the case. Mr Lawrence has told us that the Deputy Judge said, or gave the impression, that his relationship with the claimants' solicitors over his will had ended some time previously. There can be no doubt that the defendants were told that the solicitors continued to hold the Deputy Judge's will. There is also no doubt that the Deputy Judge did not indicate that he would be meeting at least two people from the claimants' solicitors for the execution of his will. We are told by Mr and Mrs Lawrence that the Deputy Judge said that he could not remember the name of the partner concerned.
22. What then is the fair-minded and informed observer to make of this? Is it, as Mr Lawrence submits, that the Deputy Judge was seeking to conceal his true relationship and that he had something to hide and indeed was leaving a misleading impression? Mr Lawrence submits that this is so. He points to the fact that the Deputy Judge for a long time was not prepared to reveal the names of the two witnesses to his codicil when it was executed on 12th November. He says that the Deputy Judge ought to have inquired as to who those persons were, and if he did not know that one of the persons witnessing his signature worked in the litigation department and had been involved in some capacity in correspondence with the Lawrences, he should have made it his business to find out and should not have misled the Lord Chancellor into making the statement which he did.
23. It seems to me that the fair-minded and informed observer would recognise that every judge lives in the community and that in his private life, away from his judicial life, he may need to use the services of service providers, including solicitors. That observer would also appreciate that solicitors, by the very nature of their work, have many clients the affairs of each of whom must be kept separate from those of another client. The use by a judge of the services of a firm of solicitors for his personal purposes, such as for drafting his will, would not, I think, give rise to any expectation, or even any suspicion, in the fair-minded and informed observer that the judge in his judicial capacity would, by reason of that connection over his will, be untrue to his judicial oath and favour another client of those solicitors. The observer would take note of the fact that at the time when the Deputy Judge heard the evidence of Mr Moore he was not aware who were the solicitors of the claimants and that, having heard that evidence, the Deputy Judge was the obvious person to complete the hearing of the trial. Indeed, if he had stood down, there would at least have been a risk that Mr Moore's evidence would have to be taken again in front of another judge, thereby adding disproportionately to the costs of what is essentially a very minor dispute. The observer would take note of the fact that the Deputy Judge volunteered the information that the claimants' solicitors had acted for him in preparing his will and that the Deputy Judge had obtained the express confirmation of the parties that there was no objection to him continuing to preside in the case. The observer would, in my view, have attached particular importance to the fact that the will, as the Deputy Judge told the defendants, was being kept by the claimants' solicitors. That in itself would indicate that there was a continuing relationship with the solicitors and that it was possible that the will might need to be altered in some way (and codicils are frequently made after a will has been executed), when probably there would be contact between the Deputy Judge and those solicitors. As the Deputy Judge obtained confirmation from the defendants that despite his connection with the solicitors over his will there was no objection to him continuing to sit, the observer would reasonably regard the completion of a codicil, which the solicitors had been asked by the Deputy Judge to prepare, as within the reasonable scope of what had been cleared with the parties.
24. The witnessing of the signature of the testator on a testamentary document, as the informed observer would know, is a mere ministerial task, and the fact that a secretary in the litigation department of the solicitors happened to be available to be such a witness is in itself neither sinister nor significant. The observer would note that the Deputy Judge has made clear that he did not discuss the claimants' case against the defendants when he went to complete his codicil.
25. The passing of a message to the claimants' counsel by the Deputy Judge, or the court usher, or the Deputy Judge's clerk would not, in my view, be regarded by the observer as of any significance whatsoever. There is no evidence that the Deputy Judge was consulting Mr Cowen in passing that message to Mr Cowen and Mr Lawrence. I have already stated what Mr Cowen has said occurred. In my judgment, it is impossible to regard that incident as indicating any appearance of bias.
26. It is unfortunate that in the letter to Mr Lawrence from the Lord Chancellor a factual error has been made in the sentence which I have cited. But the mere fact that a witness of the Deputy Judge's signature to his codicil was a secretary who had some connection with the case, in that her initials appear (with the initials of another) on letters to the defendants in relation to this case, would not appear to the fair-minded observer to be of any importance. Nor, in my judgment, can there possibly be some sort of duty on the Deputy Judge to have investigated precisely what functions were performed in the affairs of the claimants' solicitors by a mere witness to his signature.
27. Looking at the matter objectively, I am wholly unable to see that the fair-minded and informed observer would conclude from the various matters to which Mr Lawrence has attached importance that this was a case in which there has been an appearance of bias. For these reasons, therefore, I do not accept his arguments on this ground.
28. For completeness I should also deal briefly with Mr Lawrence's further objection that the Deputy Judge conducted the trial unfairly in imposing a timetable on the trial at the start of the second day, only allowing five minutes for the examination in chief of further witnesses. Mr Lawrence submits that this is quite unfair, because two witnesses for the claimants were examined in chief at greater length on the first day.
29. In my judgment there is nothing in this point either. The chief witness of fact for the defendants was Mr Moore. It is apparent from the transcript of the hearing in August that Mr Moore was examined by Mr Lawrence in chief at some length. The fact that the two sons of the late Mr Griffiths were examined on 9th November for rather longer than five minutes does not, to my mind, lead to the conclusion that on 10th November the Deputy Judge, exercising his case management powers and imposing a rather more rigorous timetable from then on, was showing bias or acting unfairly. The Deputy Judge's directions also applied to the further witnesses of the claimants. In any event, as I have said, the main witness of the defendants had already given evidence without any time limit. Further, the other witnesses had produced witness statements and there was no need for there to be a lengthy examination in chief. What the Deputy Judge decided was well within the proper exercise of his case management powers, and, in my judgment, it provides no basis for allowing this appeal.
30. For these reasons , I have reached the clear conclusion that this appeal must be dismissed.
31. LORD JUSTICE CHADWICK: I agree with the judgment which Peter Gibson LJ has just delivered. I add some words of my own only on the issue of apparent bias. I do so because it seems to me important that the appellants should be left in no doubt that their concerns have been considered as fully and carefully as an allegation of apparent bias properly requires.
32. The test is not in doubt. It has been summarised recently by this court in the appeal in The Director General of Fair Trading v The Proprietary Association of Great Britain & Another (unreported, 21st December 2000), to which Peter Gibson LJ has already referred. The appellants disclaim any allegation of actual bias in the judge. Where actual bias has not been established the personal impartiality of the judge is to be presumed. The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do, the decision must be set aside. The court must ask itself whether the circumstances -and that includes all the circumstances which a fair-minded and informed observer would properly regard as material, whether known to the appellants or not - would leave a fair-minded and informed observer to conclude that there was a real danger that the judge was biased.
33. In the present case the material facts included the disclosure by the judge that the solicitors instructed by the claimants held his will. Whether or not he needed to disclose that fact in the circumstances of this case is not a matter which I find it necessary to decide. The fact is that he did disclose that fact and that that disclosure led no-one to object. What he did not disclose was that those solicitors had current instructions to amend that will or, perhaps more accurately, to prepare a codicil; nor did he disclose that he had made an appointment to attend on those solicitors at their offices for the purposes of executing the codicil. Whether or not, having disclosed that the solicitors held his will, he would have been wise to disclose those additional matters also, is, again, something which I do not think it necessary to decide. The relevant question is not whether the judge was wise to act as he did; nor whether other judges might have acted differently. The relevant question is whether, having disclosed that the solicitors held the will, his failure to disclose also that the solicitors were currently instructed in relation to it gives rise to a fear in a fair-minded and informed observer of a real danger that the judge's judgment would be influenced by that current relationship.
34. In my view, no fair-minded observer would reach the conclusion that a judge would so far forget or disregard the obligations imposed by his judicial oath as to allow himself, consciously or unconsciously, to be influenced by the fact that one of the parties before him was represented by solicitors with whom he was himself dealing on a wholly unrelated matter. It is a matter of everyday experience that judges are acquainted, in one capacity or another, with those who appear before them as solicitors or advocates. That is a matter of which an informed observer would be well aware. The informed observer would be well aware, also, that judges, solicitors and advocates can be expected to recognise that it is a matter of paramount importance that the public should retain confidence in the administration of justice; and to recognise that they are required to conduct themselves accordingly. But judges, solicitors and advocates are entitled to expect from a fair-minded and informed observer a corresponding recognition that they will endeavour to be true to their judicial oath and to the standards set by their respective professional codes. It is not to be assumed, without cogent evidence to the contrary, that a judge's acquaintanceship, whether social or professional, with those conducting litigation before him in a professional capacity will lead him to reach a decision in that litigation that he would not otherwise reach on the evidence and the arguments.
35. The judge kept the appointment which he had made. He executed his will at the solicitors' offices on the evening of 11th November 1999, after the completion of argument in the case and before giving judgment on the following morning. The mere fact that he attended to execute his will in accordance with the appointment which he had made adds nothing, in my view, to the matters to which I have already referred. It was an incident of the current professional relationship between the judge and his solicitors.
36. The more relevant question is whether his attendance at the solicitors' offices would lead a fair-minded and informed observer to infer that he might use the opportunity to discuss the litigation which he had been hearing that day with someone in those offices whose views would impact upon his mind; or, to revert to the test which is to be applied, that the fair-minded and informed observer would infer that there was a real danger that that might occur.
37. The chance of a judge meeting out of court a solicitor or advocate who is currently appearing before him in court is a chance which has to be accepted unless judges are to lead lives of cloistered isolation. The danger lies not in the chance meeting - or even in a meeting planned for some purpose unrelated to the litigation - but in the discussion of the litigation in the course of that meeting. The fair-minded and informed observer would, in my view, credit both judge and solicitor (or advocate) with a recognition that discussion of current litigation would be wholly improper; and, indeed, would be likely to be embarrassing to either or both of them. He would not infer, without cogent evidence to the contrary, that the judge, solicitor or advocate would forget the behavioural norms by reference to which their daily lives are conducted.
38. It may well be that, had this matter been handled differently, the suspicion that the appellants now undoubtedly hold of the judge's partiality would never have arisen. But I repeat that the test is not whether the appellants think that the judge may have been biased; but whether a fair-minded and informed observer would conclude that there was a real danger of bias. I have no doubt that a fair-minded and informed observer, taking account of all the material facts, would not reach that conclusion.
39. It follows that, for those reasons, as well as for the reasons given by Peter Gibson LJ, I too would dismiss this appeal.
40. LORD JUSTICE KEENE: I agree with both judgments which have been delivered. I too would dismiss this appeal.
Order: Appeal dismissed with costs subject to detailed assessment. Permission to appeal to the House of Lords refused.