England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
DISTRICT JUDGE JONES
No. 5MA13485

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/06/2007

Lord Justice Sedley :

This is the judgment of the court.

1. The appellant was the defendant in a personal injury action arising out of a low-velocity motor collision. There were three claimants. The claim was allocated to the multi-track in Manchester and released by the designated civil judge to District Judge Jones for trial.
2. On 14 July 2006 the district judge gave a judgment about the content of which there could be no complaint. It recorded that at trial the day before the defendant had admitted liability – which up to that point he had denied - for running into a car driven by the first claimant, but that he contended that there had been only two people in the car – the first claimant and, in the passenger seat, the second claimant. The district judge, however, found for all three claimants, accepting their testimony that, contrary to the defendant's evidence, all three had been in the car. They were awarded respectively agreed sums of £2,816, £1750 and £2000 for what were, self-evidently, minor injuries, and the defendant, or rather his insurers, was ordered to pay their costs in the sum of £11,773:65.
3. This would have been an unappealable end to an unremarkable case but for what had happened half way through the trial.  The claimants gave their evidence during the morning of 13 July and were cross-examined in accordance with the defendant's case. Towards 1 p.m., at the conclusion of their evidence, the judge adjourned and invited counsel for the parties into his room. It is what transpired there that has brought the case to this court, with permission granted by Smith LJ on sight of the papers.
4. According to a note prepared shortly afterwards by counsel for the claimants, Angela Georgiou, and agreed in its essentials by Brian McCluggage, counsel for the defendant, the district judge said in substance:

(1) Having heard the claimants give evidence, he believed them.

(2) He had considered the manner in which they gave their evidence and in particular the quickness with which they responded to questions.

(3) He had warned each one of them of the consequences of his deciding that they were pursuing a fraudulent claim and had seen their reply. He did not consider the men to be dishonest.

(4) He accepted that he had not yet heard the defendant give evidence, but in view of his decision that the claimants were honest he could not see how the defendant could win.

(5) He wanted to give both counsel an indication of his thoughts.

(6) It was 'flavour of the month' for insurers to prosecute claimants with 'Asian sounding names'.

(7) He would, if necessary, say something about that in his judgment..

(8) Insurance companies are trying to send out a message about fraudulent claims to the Asian community, if there was such a thing.

(9) There were some discrepancies in the evidence given by the claimants but not such as to make him think that this was a fraudulent claim.

(10) He noted that the defendant worked for the police.

(11) Someone with a police background 'always thinks that they are right' [or 'never thinks that they are wrong'] 'and find it difficult to accept that they might be mistaken'.

(12) The defendant may or may not be mistaken, but he believes that he saw two people in the car and may have concluded that the claimants are 'at it'.

(13) He would continue to hear the case, but the defendants' counsel may wish to take instructions over the lunch break.

The only difference of recollection is that the defendant's counsel does not recall (5) featuring in the dialogue. We will return to its significance in a short while.

5. The appellant's case is that the judge, by saying what he said, went well beyond giving counsel an initial indication of his thinking and expressed firm views adverse to a defendant whose evidence he had not yet heard. When therefore in his judgment next day he found against the defendant, a reasonable observer knowing what we have recounted would infer that he might well have done so because of a prior prejudice in favour of the claimants and against the defendant.
6. The district judge has, correctly, been invited to respond. In a letter of 6 October 2006 he wrote to the Head of Civil Appeals:

 "My perceived "sin" is set out in paragraph 4 of the Notice of Appeal. I do not have the court bundle in front of me as this was returned to the Claimant's representative, but from memory I believe that the evidence of each Claimant was completed at about 12.50p.m. on the 13 July 2006. I invited Counsel for the parties into my chambers and told them that I considered in the light of the evidence and the substantial cross-examination that the Claimants were telling the truth.

The trial recommenced at about 2.15p.m. No mention was made in Open Court of the discussion I had had with Counsel for the parties. Again from memory, the Defendant's evidence was completed at about 4.00 p.m. I adjourned to prepare a judgment which I gave the next day.

It is my belief that I have given judgment in accordance with the evidence heard. The Defendant's evidence given on the afternoon of the 13^th July 2006 did not persuade me that my initial reaction that these Claimants were telling the truth was wrong. This Defendant gave his evidence with such precision in relation to an incident that happened 17 months before the trial that I found myself disbelieving it. It never occurred to this Defendant that he could be wrong as to the presence of the third Claimant within the car. He thoroughly resented the fact that his Counsel on the morning of the trial had advised him that he had no defence to the claim for negligence because, as he stated in his evidence, he was of the view that he was not to blame for the accident."

The judge goes on to explain an aspect of his judgment which is not now in issue, and ends:

"In conclusion, my decision is based upon evidence that I heard and my remarks to counsel during the lunchtime adjournment were made on the basis that during the course of cross-examination of each Claimant the Defendant's case had not been made out. The weight of evidence favoured the Claimant."

7. We heard argument on this appeal on 19 April 2007. The respondents were represented pro bono by Mr Barry Coulter. They had brought their claims, as is now usual, on a conditional fee agreement backed by after-the-event insurance which, however, expired on the giving of judgment. Although, as will be seen, this dispute has reached a relatively happy ending, the respondents found themselves through no fault of their own or their counsel facing the loss of the judgment and costs order in their favour, with the prospect of a retrial at which their honesty would again be called in question.
8. Having called first upon Mr Coulter to show cause why the appeal on bias should not be allowed, and having not found it necessary thereafter to call on counsel for the appellant, we adjourned the hearing so that Mr Coulter could consider whether he was in a position to contend that the appearance of bias had been waived by the voluntary act of the appellant in continuing with the case before the district judge. We gave him liberty to restore the appeal for this purpose if so advised.  The court has now been notified that it is not sought to adopt this course, and we therefore proceed to give judgment.
9. Parenthetically, the appellant's notice also complains of a remark made in the judgment below to the effect that the case might be one of those which insurers had banded together to contest because of a spate of inflated and fraudulent claims. Although we did not hear argument on this point, it seemed to us at first blush to add nothing to the bias claim and, albeit the remark was said to be based on no evidence and to ignore the fact that the claim was being contested on its merits, had no appreciable impact on the eventual decision. For present purposes, at all events, it can be set on one side
10. The test of ostensible bias is not contentious. It is whether a fair-minded observer informed of all the relevant circumstances would have concluded that there was a real possibility that the judge was biased. Bias in the present context has to mean the premature formation of a concluded view adverse to one party. We put it in this way because it is well recognised not only that a judge may and commonly will begin forming views about the evidence as it goes along, but that he or she may legitimately give assistance to the parties by telling them what is presently in the judge's mind. This may properly include, as it did for example in Jacob J's decision in Hart v Relentless Records Ltd [2002] EWHC 1984 (Ch), §38, letting the parties know before reaching the defence case that the judge did not think much of the claimant's evidence. What is not acceptable is for the judge to form, or to give the impression of having formed, a firm view in favour of one side's credibility when the other side has not yet called evidence which is intended to impugn it. The appellant says that is what has happened here.
11. The respondents say not. They submit first of all that the district judge's remarks were made "in the confines of his own room". This cannot matter if they were made, as they were, to counsel, neither of whom was permitted by the rules of professional conduct to keep what was said from her or his client. The same test has to be applied as if the words had been spoken in open court.
12. The respondents next rely strongly on the one remark recorded by their counsel but not recalled by the appellant's counsel, namely that the judge "wanted to give both counsel an indication of his thoughts". We are entirely content to accept that whether the district judge said it or not, it is what he was seeking to do. The question remains whether the thoughts he communicated were nevertheless such as to suggest to a reasonable observer that his mind was all but closed against the defendant.
13. As to this, the respondents submit that what the district judge did was simply undertake some active case management, which according to CPR 1.4 includes helping the parties to settle. Reliance is placed by them on what Lady Smith said in Project v Hutt (2006) UKEAT S/0065/05/RN, §22:

"There are, of course, occasions when a judge or tribunal can quite properly explore difficulties that have become apparent from the evidence in a case, prior to the point at which all evidence has been led and submissions made, whether with a view to encouraging parties to consider settlement or narrowing the issues between them, or otherwise. There must, though, be few occasions when that can properly be done at a point prior to the leading of any evidence in the case since, at that stage, there is, by definition, no evidence before the court or tribunal on which it can comment. Moreover, if minded to make such a comment, it is plain that the risk of giving an impression of prejudgment will arise if it is not made clear to the parties that any views expressed are but provisional, that the tribunal's mind is not yet made up and that it remains open to persuasion."

14. We would respectfully endorse the whole of that passage. But it is the caveat in it which is particularly important to the present case. If the judge's remarks had ended at (9), he would have done no more than tell the defendant's counsel that he had not in the judge's eyes succeeded in discrediting the claimants' evidence, leaving open the impression which the defendant would now make. But the judge went on to close this door, having already told counsel that he did not see how the defendant could win, by expressing the view that his insistence that there were only two people in the car was, in paraphrase, rigid thinking typical of members of the police service.
15. The respondents seek to defend this, first by listing other pointers in the conduct of the trial to a dogmatic attitude on the defendant's part and secondly by submitting that if the judge was right in his view that the claimants were honest witnesses "the appellant had to be mistaken". Both of these arguments seem to us to compound the respondents' problem. The first is in effect an argument that the judge was justified in forming a view about the defendant's credibility before he had even entered the witness box. The second overlooks the possibility that if the defendant were to prove equally or more credible, the judge would have to reconsider his view of the claimants. It has also to be said that the concluding comment in the district judge's letter to this court falls into the same error.
16. Both the common law and the European Convention on Human Rights recognise the fundamentality of every litigant's right to a tribunal free both of bias and of the objective appearance of bias. The appearance of bias includes a clear indication of a prematurely closed mind. In our respectful view the district judge, albeit acting out of the best of motives, gave the parties an inescapable impression that he had formed a view not only favourable to the claimants but such that the defendant was not going to be believed if he contradicted them.
17. For reasons which we do not doubt are sound, a plea of waiver has not been pursued on the respondents' behalf. We would, however, stress that the time to draw the attention of a tribunal to a clear manifestation of bias on its part is ordinarily when it occurs. There is no reason why a judge to whom it is courteously pointed out that he or she may have overstepped the mark should not accept that it may be so and stand down. Equally, however, it is only in a clear case that an advocate can responsibly take this course and a judge accede to it, both because such applications have been known to be made opportunistically and because of the expense that a recusal will inevitably throw upon one or both parties, neither of whom will ordinarily be to blame for what has happened. The law of waiver is not simple, but appellate and reviewing courts tend not to look favourably on complaints of vitiating bias made only after the complainant has taken his chance on the outcome and found it unwelcome. In the present case, however, there is no criticism of the course adopted at trial by the defendant's counsel.
18. Were it not for the good sense of the parties, the ineluctable result of our decision would have been that this modest trio of claims had to go back to the county court and be reheard there. It is pleasing to be able to record that the parties have agreed that there need be no order for remission, the action having been compromised while the appeal stood adjourned, and that the costs of the appeal should lie where they fall. The order of this court will accordingly be simply that the appeal is allowed with no order as to costs.