England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand London WC2 Thursday, 7th February 2002

1. LORD JUSTICE THORPE:Mr Richard Jan appeals from a ruling given by HHJ Oppenheimer sitting in the Brentford County Court at the end of the morning of 12th October last.
2. To explain how Mr Jan came before HHJ Oppenheimer on that day, perhaps it is necessary to go back to the core of the matter which is that Mr Jan has had some involvement with mental health professionals in the area as a result of which both the London Borough of Ealing and the West London Mental Health NHS Trust, the Ealing Community Health Council and some individuals have sought injunctive relief against Mr Jan.
3. Injunctions were granted by HHJ Oppenheimer in February 2000 prohibiting Mr Jan from assaulting, harassing or communicating with employees of these authorities or from entering the premises of these authorities; and from assaulting, harassing, communicating with or approaching within 200 metres of the home of a named individual.
4. Breaches of these injunctions were asserted by the claimants and, on 3rd and 4th April 2000, HHJ Oppenheimer took a committal application. He found the majority of the allegations proved and committed Mr Jan to prison for a term of four months.
5. Following his release in June, there were further allegations of breaches of injunctions in the autumn and, in December 2000, again an application for committal was issued.
6. The first return on 8th January was ineffective, since Mr Jan had not been personally served. An order for substituted service was then made. There was another ineffective hearing on 9th March, but on 22nd May the committal application came on in the absence of Mr Jan. The claimants proved service to the satisfaction of the judge and went on to prove to his satisfaction the majority of their allegations on contempt.
7. The judge, again in the absence of Mr Jan, imposed a fifteen month prison sentence. Subsequently, in October, Mr Jan was arrested on a warrant and brought before the court on 13th October. On that day he was represented by Mr Geldart and the claimants were represented by Mr Green.
8. Mr Geldart's primary application was to set aside the committal order, the sentence, and to obtain a direction for a retrial on the basis that his client had not been duly served and had been ignorant of the hearing on 22nd May.
9. We have a transcript of the progress of Mr Geldart's application and we can see that the judge was at pains to ensure that Mr Jan should receive the benefit of any doubt, and that he was imposing on Mr Green, for the claimant, a very heavy burden in satisfying him that the application should be dismissed.
10. The judge said, at page 31 of the transcript:

"I am determined actually if I can to give him the benefit of the doubt."

11. So Mr Geldart, taking the hint, said:

"Your Honour, perhaps I will sit down at this stage in the light of that indication."

12. However, immediately before giving that indication, the judge had said, and this appears at page 30 of the transcript:

"Mr Geldart and I repeat, Mr Green has an uphill task to show this Court so that I am satisfied that he knew of this hearing or was evading service. The reason I put it like that is because while I frankly do not trust your client or Mr Stanley further than I could throw them on this particular topic ..."

13. In response to that very strong observation Mr Geldart immediately intervened, saying:

"Your Honour, with respect ..."

14. But the judge went on to give the indication that he was going to grant the application.
15. So although Mr Geldart had achieved his object, it was at the expense of an observation from the judge that he would not trust Mr Jan or Mr Stanley further than he could throw them, admittedly on the topic of whether or not Mr Jan had been evading service.
16. The importance of the inclusion of Mr Stanley in this appraisal is that Mr Stanley had given evidence at the April committal and was very likely to be a witness at any retrial of the proceedings that had culminated on 22nd May.
17. The observation was then reiterated when the judge came to give his reasons for acceding to Mr Geldart's application for retrial. At page 39, very much the same language is recorded. The judge said:

"When I say 'served', I do not mean personally served in accordance with the rules and I do not mean sufficient notice, but he knew of the proceedings, probably, but probably is not good enough. I have already indicated that I do not trust Mr Jan further than I can throw him on this issue. I have said that and I am prepared to repeat it. I have great doubts about Dr Stanley. Great, great doubts about Dr Stanley and his role in passing or not passing information served on him. I have no reason to suppose that he opened any envelope that arrived. I have no reason to suppose that he did not return the envelopes to the Court. I accept that he did but I do not know what he said to Mr Jan, though I can imagine."

18. Mr Geldart subsequently made an application which, in the circumstances, was hardly surprising. He said:

"I do invite your Honour to disqualify yourself from hearing the committal application. One who has heard Mr Jan in the past and heard a marked view of his credit as a witness."

19. There then followed what seems a comparatively informal exchange between the judge, Mr Geldart and Mr Green, at which the appropriate test to be applied in determining such an application was debated.
20. There is no doubt at all that the judge was at pains to reassure Mr Jan that there would be no actual bias, or no risk of actual bias. He clearly intended to come to the important question of perceived bias for, at page 48 of the transcript, he says:

"Not whether he pursues it but whether objectively speaking justice may not be seen to be done, not just by him, but generally..."

21. At that point Mr Geldart intervened and the judge was deflected from pursuit of the topic. The same had occurred slightly earlier in the exchanges where the judge posed the question:

"Is there an appearance of fairness where the Judge does not come fresh to the case? Having taken that sort of view and it is not that straightforward ..."

22. But again he was deflected from pursuing that line of determination.
23. So in the end all we have is a very brief ruling when Mr Geldart brought the debate to a close by asking for a judgment. All the judge said was:

"Yes, I rule on it and my ruling is that I am in no wise disqualified from hearing the case. I can see no reason either of actual or perceived bias. There must indeed be many cases in which a Judge is in grave doubt as to the credibility of the applicant in a situation like this and it cannot be in such a case that the judge is then disqualified from hearing the substantive hearing, so, no, the application is refused."

24. Now Mr Geldart, in pursuing his application, obviously relies on the passages in the transcript which I have cited. He refers to the decision of this court in the case of In Re Medicaments [2001] 1 WLR 700 and particularly the passages at page 722 where stress is laid on the difficulty for the judge at trial giving a determination where actual bias is asserted. It does seem to me that a judge is equally in a difficulty in giving an objective ruling on an assertion of perceived bias.
25. We may be in a superior position to the judge, having the opportunity to look at it at a distance and collectively. It does seem to me to be very much a matter of impression to be drawn from the transcript. I have no doubt at all that there is no question of actual bias. The question is whether the fair-minded, informed member of the public sitting at the back of the court would have thought, "Oh dear, it does not look very good for Mr Jan when this case comes up for retrial."
26. The judge has expressed himself in very strong terms. To say of a respondent to a committal application "I would not trust him further than I could throw him", even if the observation is limited to an issue of service, is about as strong a prejudgment as can be conceived and it is important to stress that it comes at a time when Mr Jan has not even embarked on the task of testifying.
27. So, particularly bearing in mind that this is a county court in which there is no practical difficulty in arranging for the next hearing to be in front of another judge, it seems to me that that would have been the wise determination on 13th October.
28. I would simply allow the appeal and give the direction that Mr Geldart seeks, namely that the retrial, which is apparently scheduled for April, should be in front of some other judge in that court.
29. LORD JUSTICE TUCKEY: I agree. The simple question on this appeal is: could a fair-minded and informed observer, sitting in Judge Oppenheimer's court that morning, have concluded that there was a real possibility that the judge would be biased against Mr Jan at the forthcoming committal hearing?
30. In the course of that morning the judge twice said that he did not trust the appellant further than he could throw him. Admittedly, this was in the context of Mr Jan's assertions that he was unaware of the application to commit him, but these were very strong words and I really think the question I have posed admits of only one answer.
31. SIR ANTHONY EVANS:I agree with both judgments and that the appeal should be allowed.
Appeal allowed. Respondent ordered to pay appellant's costs. Appellant's costs to be subject to public funding assessment.