England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2008] EWCA Civ 1593

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		Neutral Citation Number: [2008] EWCA Civ 1593
		Case No: B2/2007/0744

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(HIS HONOUR JUDGE FARNWORTH)

Royal Courts of Justice
Strand, London, WC2A 2LL

5th December 2008

B e f o r e :

LORD JUSTICE DYSON
LORD JUSTICE JACOB
and
SIR JOHN CHADWICK
____________________

Between:

	MR & MRS COLE	Appellants
	- and -
	LETCHWORTH GARDEN CITY HERITAGE FOUNDATION	Respondent

____________________

(DAR Transcript of
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____________________

THE APPELLANT, MR COLE, APPEARED IN PERSON
Mr J Small QC (instructed by Messrs Brignalls Balderstone) appeared on behalf of the Respondent.
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Dyson:

This case concerns the operation of the scheme of management for Letchworth Garden City, approved under Section 19 of the Leasehold Reform Act 1967. The scheme has, at all material times, been managed by the defendant. By virtue of the scheme, those who have acquired their freeholds under the Act are bound by a scheme of covenants, including a restriction on carrying out external alternations without the written consent of the defendant -- such consent not to be unreasonably withheld.

The appellants are the owners of 32 Sollershott West in Letchworth, which is a dwelling which is subject to the Letchworth scheme. They obtained planning permission for proposed building works. They applied to the defendant for consent under the relevant covenants but consent was refused. The appellants then started proceedings in the Luton County Court, claiming, amongst other things, a declaration that the refusal of consent was unreasonable. By a judgment given on 24 January 2007, HHJ Farnworth held that the refusal was not unreasonable and dismissed the application with costs. The appellants sought permission to appeal. Lawrence Collins LJ first granted permission to appeal but then, under the slip rule, amended that decision and adjourned the application with the appeal to follow if permission was granted. The grounds of appeal do not seek to challenge the judge's findings or his reasoning. The basis of the proposed appeal is that the judge was biased in the respects which I shall shortly describe.

During the trial the judge made it clear that he had a longstanding knowledge of Letchworth and that he had gone to a local school and played hockey for many years for the Letchworth Hockey Club ("LHC"). Early in the morning of the second day of the trial a view was arranged for the judge to see both the appellants' property and also the neighbouring property of Mr and Mrs Bathmaker. It seems that the impact of the development on the Bathmakers' property was a principal factor put forward by the defendant to justify its refusal of consent. The view was attended by the parties' experts. The judge was late for the view and a message from the judge was relayed to those waiting for him via Mr Bathmaker. The judge later explained in a letter of 22 August 2007 to the Civil Appeals Office how it came about that he telephoned the Bathmakers. In short, he was held up in a traffic jam. He could not contact the experts who were attending the meeting but he found Mr Bathmaker's telephone number in the trial papers and spoke to him and asked him to tell whoever attended the view that he was delayed and why. Mr Bathmaker agreed to do this.

When the judge arrived at the view he had a brief conversation with Mr Cole. They discovered that they were both members of the LHC -- this was subsequently mentioned by the judge when the parties reconvened at court later that morning. No objection was made by any party at the trial to the judge carrying on to hear the case. The appellants were represented by counsel at the trial.

Some time after the judge had given judgment the appellant discovered that the judge was the vice president of the LHC and a trustee of the Letchworth Corner Sports Club ("LCSC"). It is these facts which form the basis of the proposed appeal. In the documents prepared by Mr Cole who, until very recently and since the hearing below, has been acting in person, he expressed some concern about the apparent knowledge of the judge of the Bathmakers; but, in the light of the explanation that has since been given by the judge as to how it came about that he did have communication with Mr Bathmaker, no challenge to the decision is now pursued in reliance upon that communication.

The facts which are relevant to the involvement of the judge as trustee of LCSC are these. The judge is, as I have said, a trustee of the LCSC. In 1996 and again in 2007, in that capacity he was a signatory to the club's lease from the defendant, but under that lease the trustees have no personal liability. The lease to the LCSC was one of more than one thousand commercial lettings made in Letchworth by the defendant. Furthermore, in his capacity as trustee of LCSC, the judge has signed a number of loan agreements with the defendant. The current agreement was signed in 2000. All the loan agreements expressly provide that the trustees have no personal liability under them. The judge himself has never negotiated with the defendant for any funding, either on behalf of LCSC or indeed LHC; nor has the judge ever had any management or consultation role either in LCSC or indeed LHC. His involvement with LHC is simply that he has been one of its vice presidents. He has no financial interest in the club and, so far as the judge knows, he has no voting rights either.

The appellants seek to rely on the involvement of the judge with LHC and LCSC, in the way that I have just described, to found a case that the judge was biased and should have recused himself from taking part in these proceedings. It is now well-established that there are two quite distinct bases upon which a judge may be disqualified from acting on the grounds of bias. The first is that a judge is automatically disqualified from sitting if the outcome of the case can realistically be regarded as affecting the judge's interest. That is not the basis upon which it is submitted on behalf of the appellants that there was bias in the present case. The second strand to bias is that there may be what is described as "apparent bias", where the court asks, having ascertained all the circumstances, whether those circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility that the tribunal was biased. That test is now well-established and was expressed, for example, by the House of Lords in Porter v McGill [2001] UKHL 67; [2002] 2 AC 357 (see in particular paragraph 103 in the speech of Lord Hope).

What is said, in short, is that the involvement of the judge, in particular with LCSC, was such that the well-informed and fair-minded observer would consider that there was a real possibility that the judge would have been biased against the appellants and in favour of the defendant. It is said that the judge had "business relations" with the defendant through the medium of the loan agreements and the lease obligations. In my judgment those arguments have no prospect of success and I would not give permission to appeal.

It is important to note that neither LCH nor LCSC stands to gain at all from the outcome of the appellant's dispute with the defendant. There is no obvious or other proven financial link, and it seems to me that the clubs themselves have not identified themselves with any sort of cause which is central to the dispute in the present case. One has to ask what would a fair-minded and informed observer make of this? It seems to me that the informed observer would know that the judge played no part in the running of either of the clubs. He is a trustee of LCSC. He has no personal liability in respect either of the loan agreements or the leases. In my judgment it is fanciful to suppose that the well-informed and fair-minded observer would regard this judge, in these circumstances, as possibly being biased in favour of the defendant. In my judgment there is no substance in these points and I would refuse this application.

Lord Justice Jacob:

I agree.

Sir John Chadwick:

I also agree.

Order: Application refused