Factual and Procedural Background
The appellant, Company A, engaged the appellee to carry out building works at its premises between November 2012 and April 2013. The appellee submitted invoices totaling £52,805, of which £28,000 was paid by Company A, but the remainder was unpaid. The appellee brought a claim for the outstanding balance in the Central London County Court. Company A disputed the claim and counterclaimed for losses allegedly caused by delay, costs of remedying defects, and losses from inability to reclaim VAT due to the appellee not being VAT registered.
The trial took place before Deputy District Judge Wallis on 19 February 2015. Evidence was heard that day, but closing submissions were made in writing by agreement. The trial judge delivered a written judgment on 28 April 2015, finding for the appellee with some minor deductions and dismissing the counterclaim. Company A appealed to the circuit judge, who dismissed the appeal on 2 June 2016. Company A obtained permission to appeal to the Court of Appeal solely on the issue of apparent bias related to a private conversation between the trial judge and the appellee's counsel.
Legal Issues Presented
- Whether the trial judge showed apparent bias by having a private conversation with one party's counsel alone during the trial.
Arguments of the Parties
Appellant's Arguments
- The trial judge expressed views on the case privately to the appellee's counsel without the presence of Company A's counsel, creating a real possibility of bias.
- The trial judge’s comments focused on the weakness of Company A’s counterclaim, suggesting pre-judgment.
- Reference was made to the principle that public confidence in justice requires higher standards today, implying the trial judge’s conduct fell short.
Appellee's Arguments
- The fair-minded and informed observer would not conclude there was a real possibility of bias despite the judge’s private comments.
- The trial judge’s conduct, though not ideal, did not amount to apparent bias.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Sussex Justices ex parte McCarthy [1924] 1 KB 256 |
The fundamental importance that justice should not only be done but be seen to be done; no suspicion of improper interference. |
Established the foundational principle underlying the test for apparent bias applied in this case. |
| Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 |
Two-stage test for apparent bias: ascertain all relevant circumstances, then ask if a fair-minded observer would see a real possibility of bias. |
Guided the court’s structured approach to assessing apparent bias in the trial judge’s conduct. |
| Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 |
Bias means prejudice for reasons unconnected with legal or factual merits. |
Clarified the meaning of bias relevant to the court’s evaluation. |
| Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117; [2008] 1 WLR 2528 |
Further elaboration on the nature of bias and the test for apparent bias. |
Supported the court’s interpretation of bias as requiring a real possibility of prejudice unrelated to merits. |
| Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515; [2014] 1 WLR 1943 |
Characteristics of the fair-minded and informed observer; importance of context and facts; if test satisfied, automatic disqualification. |
Helped define the observer standard and reinforced the automatic nature of disqualification if bias found. |
| Lawal v Northern Spirit Ltd [2003] UKHL 35; [2003] ICR 856 |
The fair-minded observer is neither unduly sensitive nor complacent; public confidence requires high standards. |
Used to emphasize the standard applied to the observer and public confidence in justice. |
| Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416 |
Importance of facts and context; distinction between complainant and fair-minded observer. |
Informed the court’s approach to examining the facts and applying the observer standard. |
| Man O' War Station Ltd v Auckland City Council [2002] UKPC 28 |
If apparent bias test is met, judge must be disqualified regardless of inconvenience or cost. |
Supported the court’s rejection of proportionality or cost as grounds to avoid recusal if bias were found. |
| Almazeedi v Penner [2018] UKPC 3 |
Further clarification on the fair-minded and informed observer standard. |
Reinforced the detachment required in the observer’s perspective. |
| Watts v Watts [2015] EWCA Civ 1297 |
Higher standards of public confidence in the administration of justice today. |
Supported the appellant’s submission on the importance of maintaining public confidence. |
Court's Reasoning and Analysis
The court acknowledged the trial judge’s conduct was misguided and criticized his decision to have a private conversation with one party’s counsel alone during an ongoing trial. The judge’s expression of views about the case in private was deemed inappropriate, particularly as it related to the merits and was adverse to Company A’s case. The court emphasized that judges must avoid creating any impression of bias or partiality and maintain transparency to preserve public confidence.
However, the court found that the fair-minded and informed observer, fully apprised of the facts including the contemporaneous emails, the trial judge’s judgment, and the barrister’s witness statement, would not conclude there was a real possibility of bias. The private conversation was limited in scope, and the judge expressly asked that his comments be passed on to Company A’s counsel, which they were. Furthermore, the judge himself communicated his provisional views directly to Company A’s counsel the following day.
The court distinguished this case from precedent where private submissions to one party without disclosure to the other amounted to apparent bias. Here, no submissions were made privately, and the judge’s comments were intended to assist both parties in preparing closing submissions.
The court also found that the judge had not pre-judged the case but had expressed preliminary views, which is proper so long as no final decision is indicated. The trial judge’s later refusal to recuse himself was appropriate as the objection did not meet the legal test for apparent bias.
Holding and Implications
The Court of Appeal DISMISSED the appeal.
The direct effect of this decision is that the trial judge’s judgment and conduct stand, and no new trial will be ordered. The ruling confirms that while judges must avoid private communications that risk apparent bias, isolated improper conduct that does not meet the threshold of a real possibility of bias will not automatically invalidate proceedings. No new precedent was established beyond reaffirming established principles regarding apparent bias and judicial conduct.