COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE HALE
|- and -
|DAS LEGAL EXPENSES INSURANCE CO. LTD. & ORS.
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Mr Pirani (instructed by Messrs Lyons Davidson) for the Respondent
AS APPROVED BY THE COURT
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"I understand that at the outset of the hearing, Mrs Harper informed you that her husband was a barrister and that the chambers undertook work for DAS. Indeed, her recollection is that she said he has appeared for DAS, but that she had no connection with the company or any knowledge of it. She invited comment from you. She noted that you did not object to her continuing to chair the tribunal."
"The interests of justice do not require a review as at the commencement of the hearing the Chairman advised the parties that her husband, a barrister, on occasions was instructed by the respondent. The Chairman at that time did not know of any individual cases on which her husband was instructed, nor of any financial advantage as to the outcome of any such cases. Having raised the matter with the parties, the Chairman asked whether the applicant (who is a qualified solicitor) had any objection to her sitting on the case. The applicant said he had no objection. The Chairman considered that the applicant had therefore waived any objection to the Chairman sitting on the case."
"Chairman – Poss. conflict because Mr Harper occasionally instructed by Rs – do you object? I don't consider it a problem.
PJ – No objection."
"… We think it overwhelmingly probable that Ms Donald's [the paralegal's] note is accurate; it having been contemporaneously recorded at the time the chairman raised the point and we are satisfied that she disclosed the fact that her husband was himself occasionally instructed by the respondent."
"In our judgment it is not. Even if one were to accept, that applying the Court of Appeal's guidance in Locabail (U.K.) Ltd. v Bayfield Properties Ltd.  IRLR 98 paragraph 10, this was a case where the chairman's interest derived from her spouse such that there was a link close enough and direct enough to render the interest of her husband for all practical purposes indistinguishable from her own, we are satisfied that the potential conflict was adequately raised by the Chairman at the outset of the proceedings and that Mr Jones was given all the information that he required to decide whether or not to waive his right to object to her continuing sitting in this case. His waiver was clear and unequivocal. The hearing took place over two days in December and was then adjourned until February 2002; no objection was taken by Mr Jones until after the result was communicated to him. In these circumstances we reject the first ground of appeal."
"4. There is, however, one situation in which, on proof of the requisite facts, the existence of bias is effectively presumed, and in such cases it gives rise to what has been called automatic disqualification. That is where the judge is shown to have an interest in the outcome of the case which he is to decide or has decided. …
7. The basic rule is not in doubt. Nor is the rationale of the rule: that if a judge has a personal interest in the outcome of an issue which he is to resolve, he is improperly acting as a judge in his own cause; and that such a proceeding would, without more, undermine public confidence in the integrity of the administration of justice …
8. In the context of automatic disqualification the question is not whether the judge has some link with a party involved in the cause before the judge but whether the outcome of that cause could, realistically, affect the judge's interest. …
10. … any doubt should be resolved in favour of disqualification. In any case where the judge's interest is said to derive from the interest of a spouse, partner or other family member the link must be so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge himself."
"No-one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest."
In Reg. v Bow Street Magistrate, Ex p. Pinochet (No. 2)  1 AC 119 the House of Lords developed the rule. Lord Browne-Wilkinson said at p.132/3:-
"The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be a judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.
In my judgment, this case falls within the first category of case, viz. where a judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure."
"The importance of this point in the present case is this. Neither A.I., nor A.I.C.L., has any financial interest in the outcome of this litigation. We are here confronted, as was Lord Hoffmann, with a novel situation where the outcome of the litigation did not lead to financial benefit to anyone. The interest of A.I. in the litigation was not financial, it was in its interest in achieving the trial and possible conviction of Senator Pinochet for crimes against humanity."
"85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment to the test of R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. 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."
"I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg Court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to "a real danger". Those words no longer serve a useful purpose here and they are not used in the jurisprudence of the Strasbourg Court. The question is whether a fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased."
"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 a 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."
"The informed observer can be expected to be aware of the legal tradition and culture of this jurisdiction."
"he [this hypothetical observer] may not be wholly uncritical of this culture. It is more likely that in the words of Kirby J. he would be "neither complacent nor unduly sensitive or suspicious."
"… in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality."
He would also remind himself of the imperative need to maintain the absolute impartiality of the judiciary and, as Lord Buckmaster put it in Sellar v Highland Railway Co. 1919 S.C. 19:-
"The importance of preserving the administration of justice from anything which can even by remote imagination infer a bias or interest in the judge upon whom falls the solemn duty of interpreting the law is so grave that any small inconvenience experienced in its preservation may be cheerfully endured."
i) The fact that it would have been inconceivable for Mr Harper (who we are told is a part-time chairman of the Employment Tribunal) to have sat to hear complaints against his client, both direct and lay client, does not of itself determine the issue of his wife's impartiality.
ii) She has no direct financial interest in the work he does for DAS. There is no evidence as to how they organise their financial affairs as between themselves. Some indirect benefit to her may be a permissible inference to draw, but no more than that.
iii) A wife would ordinarily wish to advance and not hinder her husband's career.
iv) Having some knowledge of the way a barrister earns his living, she would know that just as cases are won and lost, so solicitors come and go. The volume of work done by Mr Harper could fairly be described as "occasional". It was certainly not a case where all his eggs were in one basket. There would be no reason to think that the loss of DAS-related work would materially affect either his practice or his income to any substantial extent. It simply released him to do other work for other solicitors.
v) If the informed observer is informed enough about modern vernacular, he would conclude that the chairman could fairly think that having DAS as a client was "no big deal" for her husband.
vi) Without being complacent nor unduly sensitive or suspicious, the observer would appreciate that professional judges are trained to judge and to judge objectively and dispassionately. This does not undermine the need for constant vigilance that judges maintain that impartiality – it is a matter of balance. In Locabail, paragraph 21, the court found force in these observations of the Constitutional Court of South Africa in President of the Republic of South Africa & Others v South African Rugby Football Union & Others 1999 (7) BCLR (CC) 725, 753:-
"The reasonableness of the apprehension [for which one must read in our jurisprudence "the real risk"] must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or pre-dispositions. … At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial …"
vii) Moreover, in this particular case, the charge of impartiality has to lie against the tribunal and this tribunal consisted not only of its chairman but also of two independent wing-members who were equal judges of the facts as the chairman was. Their impartiality is not in question and their decision was unanimous.
"… All three concepts – election, waiver and abuse of process – require that the person said to have elected etc. has acted freely and in full knowledge of the facts."
Thus the essential requirements for waiver are, as stated in paragraph 15 of Locabail:-
"… any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not."
That is the rule and a subsequent passage in paragraph 26 of the judgment must be read subject to those fundamental principles of waiver. The passage in paragraph 26 reads:-
"If, appropriate disclosure having been made by the judge, a party raises no objection to the judge hearing or continuing to hear a case, that party cannot thereafter complain of the matter disclosed as giving rise to a real danger of bias. It would be unjust to the other party and undermine both the reality and appearance of justice to allow him to do so." (Emphasis added by us).
We emphasise the appropriateness of the disclosure because that links back to the general rule that "all the facts relevant to the decision" must be known in order to decide whether to waive or not.
i) If there is any real as opposed to fanciful chance of objection being taken by that fair-minded spectator, the first step is to ascertain whether or not another judge is available to hear the matter. It is obviously better to transfer the matter than risk a complaint of bias. The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties.
ii) Some time should be taken to prepare whatever explanation is to be given to the parties and if one is really troubled perhaps even to make a note of what one will say.
iii) Because thoughts that the court may have been biased can become festering sores for the disappointed litigants, it is vital that the judge's explanation be mechanically recorded or carefully noted where that facility is not available. That will avoid the kind of controversy about what was or was not said which has bedevilled this case.
iv) A full explanation must be given to the parties. That explanation should detail exactly what matters are within the judge's knowledge which give rise to a possible conflict of interest. The judge must be punctilious in setting out all material matters known to him. Secondly, an explanation should be given as to why the problem had only arisen so late in the day. The parties deserve also to be told whether it would be possible to move the case to another judge that day.
v) The options open to the parties should be explained in detail. Those options are, of course, to consent to the judge hearing the matter, the consequence being that the parties will thereafter be likely to be held to have lost their right to object. The other option is to apply to the judge to recuse himself. The parties should be told it is their right to object, that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions. They should be told what will happen next. If the court decides the case can proceed, it will proceed. If on the other hand the judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed.
vi) The parties should always be told that time will be afforded to reflect before electing. That should be made clear even where both parties are represented. If there is a litigant in person the better practice may be to rise for five minutes. The litigant in person can be directed to the Citizens Advice Bureau if that service is available and if he wishes to avail of it. If the litigant feels he needs more help, he can be directed to the chief clerk and/or the listing officer. Since this is a problem created by the court, the court has to do its best to assist in resolving it.
We repeat that this guidance is no more than that: this is not a checklist, still less a definitive checklist for all cases. Sometimes some of these suggestions may be adopted, sometimes none of them may apply. We wish strongly to disabuse any disgruntled litigant of the idea that he may seize upon this judgment and use it as the mantra for complaint about ill-treatment. Any attempt to do so will receive short shrift.