ON APPEAL FROM THE HIGH COURT OF JUSTICE
INTELLECTUAL PROPERTY ENTERPRISE COURT
Mr Recorder Campbell QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYD
| (1) Zuma's Choice Pet Products Limited
(2) Zoe Vanderbilt
|- and -
|(1) Azumi Limited
(2) John Wallace
(3) Boult Wade Tennant
(4) Rainer Becker
Mr Simon Malynicz QC and Ms Georgina Messenger (instructed by Gowling WLG) for the Respondents
Hearing date: 21 November 2017
Crown Copyright ©
Lord Justice Floyd:
The factual chronology
"Having carefully read Ms Vanderbilt's witness statement I can see no basis whatever for any wrongdoing either by my clerk, Mr Sevier or Mr Malynicz."
"Particularly bearing in mind that Ms Vanderbilt sent the 5 January Statement in confidence, I intend to make no further comment about it. I have no doubt that I should not take any further steps in response to it."
"There is one thing I should say before either of you say any more. I should say that I actually know Mr Malynicz, Mr Sevier and Mr Wilcox on a personal basis. You may not know that, but I am telling you now. Mr Malynicz is a colleague of mine in chambers and has been for some years. I have worked with Mr Sevier on two cases over the past five years and I worked with his firm on others. I know Mr Wilcox in my capacity as an IPEC deputy judge. I have seen in the papers there are serious allegations against the three individuals but not Mr Sevier's firm. I also see that HHJ Hacon has given his response to these. It seemed to me that none of these allegations have any relation to this particular application we are making today, as neither of you is asking me to do anything about it and neither of you have mentioned them in your respective skeleton arguments. So, me having told you that, you have any comments to make on that?"
i) There was a real possibility of bias due to the fact Recorder Campbell QC was a practising barrister and a close business associate of the respondent's counsel Mr Malynicz QC;
ii) Conscious or intended bias was disclaimed;
iii) Mr Malynicz had introduced into the bundles the Gowling letter which was a complaint sent on a private and confidential basis and which was "not concerned with summary judgment for groundless threats". There had been no reason to put this letter into the bundles unless it was being used for the purpose of influencing the recorder to feel in a negative way towards Ms Vanderbilt. Mentioning the Gowling letter would give the impression that the respondents were being candid and that Ms Vanderbilt was making unsubstantiated allegations;
iv) The allegations were "currently under investigation";
v) The respondents ought to have given Ms Vanderbilt more notice of the fact that Recorder Campbell and Mr Malynicz were in the same chambers.
The judgment of Recorder Campbell QC
"The fact that Mr Malynicz and those instructing him may have put a particular letter in the bundle does not, in my judgment, go to bias. It may be an attempt to influence me, but I can easily put the letter out of my mind. Judges are well used to putting things out of their minds."
"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."
"The fair-minded and informed observer would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges and would understand that those standards are part of a legal culture in which ethical behaviour is expected and high ethical standards are achieved, reinforced by fears of severe criticism by peers and potential disciplinary action if they are departed from."
"It seems to me that if allegations had been made which involved, for instance, allegations of crime, fraud or matters of that nature, then I would have recused myself. However, as the application has … transpired, it has been put purely and simply on the basis that I share a professional chambers with Mr Malynicz."
"In my judgment, the notional, fair-minded and informed observer would know about the professional standards which are applicable, both to practising members of the bar and barristers who service part-time deputy judges. Such a person who is, as I've said, not unduly sensitive or suspicious, would see no reason for me to recuse myself in this case. I therefore decline to do so."
Events subsequent to the judgment under appeal
The recusal application on this appeal
i) I was the judge who had refused both her application for leave to appeal and her application to reopen the appeal under CPR 52.30;
ii) It was wrong for a judge who had refused an application on paper to deal with the subsequent application to re-open the appeal;
iii) It was wrong that, in the course of dealing with those applications, I had not upheld her objections to the judgment of HHJ Melissa Clarke, in particular the objection that Judge Clarke had incorrectly formulated the test for infringement of trade mark under section 10(3) of the Trade Marks Act 1994 and under Article 9(2)(c) of the Trade Marks Regulation;
iv) The material which it was necessary to consider on this appeal was the same as that considered on those two applications, or at least overlapped with it, so that I would not be able to deal with this appeal fairly.
i) The recorder was, when he was not undertaking his judicial functions, a practising barrister in the same chambers as counsel for the respondents.
ii) Ms Vanderbilt's allegations against the respondents' representatives and the court were all connected with prior steps in the proceedings.
iii) Those allegations had all been carefully considered by HHJ Hacon and dismissed as being without foundation.
iv) The recorder was aware of those allegations having been made and HHJ Hacon's dismissal of them from the Judge's Note.
v) The recorder was also aware of the detail of those allegations from the Gowling letter.
vi) The allegations were irrelevant to the issues which the recorder was being called on to decide.
vii) The recorder was alerted to Ms Vanderbilt's contention that the Gowling letter might put her in a poor light, and was aware that he should therefore guard against the possibility that this might somehow influence him.
"Judges in this jurisdiction, whether full time or part time, frequently have present or past close professional connections with those who appear before them and it has long been recognised that this, of itself, creates no risk of bias nor, to those with experience of our system, any appearance of bias – see eg Nye Saunders and Partners v Alan Bristow (1987) 37 BLR 92; Laker Airways Inc v FLS Aerospace Ltd  1 WLR 113; Taylor v Lawrence  QB 528 and Birmingham City Council v Yardley  EWCA Civ 1756. At the same time we can see the force of Mr Speaight's submission that changes in the way that some chambers fund their expenses and the fact that counsel can now act under a conditional fee agreement mean that, in some cases at least, there may be grounds for arguing that a Recorder should not sit in a case in which one or more of the advocates are members of his chambers. Indeed we understand that the Bar Council is currently considering the implications of conditional fee agreements in this context."
Lord Justice Patten: