Parties to litigation have always made allegations that the decision maker is biased, whether judge, arbitrator, member of a tribunal or adjudicator, particularly when the decision goes against them. In general, however, these allegations have been few and far between and are rarely upheld.
Two recent developments are likely to increase the number of allegations of bias. The first is the ever-growing number of litigants in person. The second is the intensifying drive towards tighter case management and the strict divvying up of the courts’ limited resources in the interests of proportionality.
Our adversarial justice system developed on the assumption that people will be legally represented. The JUSTICE working party report Delivering Justice in an Age of Austerity proposes a more inquisitorial court system to deal with increasing numbers of litigants in person. Concern about how to deal with the rising number of litigants in person is reflected in the new guide, Litigants in person: guidelines for lawyers.
Recent cases involving litigants in person
Whichever system is adopted, litigants without legal advice may readily infer from robust case management decisions that the judge is biased against them. Last year in Michael v Official Receiver the Court of Appeal upheld a decision rejecting an allegation of bias. Reference was made to “a judge's natural irritation at being unable to conclude a case expeditiously because of a litigant in person's prolixity”, a scenario that is going to become increasingly common.
The Court of Appeal has just rejected an allegation of bias made against an inspector presiding over a public planning inquiry in Turner v Secretary of State for Communities and Local Government. Among other grounds alleged to indicate bias, the inspector had interrupted Mr Turner, who made submissions on behalf of the objectors, and terminated some of his lines of cross-examination and submissions. Experienced counsel acted for the developers. The inspector’s response to this was: “I did so to prevent wasting time on matters of fact and because I considered that I had all the necessary information to reach conclusions on these matters.”
As these cases indicate, where litigants in person are involved, judges have to intervene to prevent time being wasted. They are also likely to end up acting as advocates, cross-examining the parties on their cases and researching the issues themselves. Peter Smith J is a judge who has had this problem several times in the past – his excessive engagement with some of his cases has led to applications that he recuse himself, Mengiste v Endowment Fund for the Rehabilitation of Tigray and Howell v Millais being two examples. Family judges are likely to find this particularly problematic, given that both parties may be litigants in person (see the comments made earlier this year by the Court of Appeal in Lindner v Rawlins).
Given that allegations of bias are going to be made more often in future, it is timely to review the circumstances in which a judge may be asked to recuse themselves and to look at some recent illustrations.
What is bias?
The fundamental principle underlying the concept of judicial bias is that a man may not be a judge in his own cause. There are two types of bias: actual bias and apparent bias. There will be actual bias where the judge is a party to the litigation or has a financial or other interest in its outcome. The interest does not have to be pecuniary or proprietary but can involve the promotion of a cause. Apparent bias may be alleged where the judge’s conduct or behaviour, interests or allegiances give rise to a suspicion that he is not impartial.
Actual bias rarely arises but it did occur in the notorious Pinochet debacle, In re Pinochet (No 2). In 1998 the former Chilean dictator applied for judicial review of an arrest warrant issued in support of an Spanish extradition request. The House of Lords held that Pinochet had no immunity from arrest (Pinochet No 1) but subsequently set aside its decision on the ground of bias. Lord Hoffman, one of the judges in the case, was a director and chairman of Amnesty International Charity Ltd, which was associated with the human rights organisation Amnesty International which had intervened in the appeal. His wife had also worked in Amnesty’s London office for many years.
There will be apparent bias where the 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 gives rise to a suspicion that he is not impartial, for example because of his friendship with a party or where he has a private conversation with the lawyer for one party. The appearance of bias can also arise because of the judge’s interests and affiliations. The test adopted by the House of Lords in Porter v McGill 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”.
We look below at the different circumstances in which allegations of apparent bias have in the past.
Legal and other relationships
There are often connections between the lawyers involved in a case, whether because the judge has been a partner in the firm of solicitors acting for one party, or in the same chambers as one of the barristers, or has acted when in practice for one of the parties or their solicitors. In general these connections are part and parcel of legal practice and do not give rise to apparent bias even though a litigant in person might understandably think that the system is unacceptably incestuous.
Applications are sometimes successful. In May this year Lang J recused herself in Rehman v Bar Standards Board, while not accepting that there were grounds for recusal. She had been the pupil master of the barrister acting for the Bar Standards Board. She had also been in the same set of chambers as the chair of the disciplinary panel before whom Mr Rehman had appeared on another occasion.
A connection between the judge and a party or witness can give rise to recusal, as in AWG Group v Morrison where one of AWG’s non-executive directors and witnesses was the judge’s neighbour in Norfolk and had been his tennis partner in the past.
Earlier this year in Sierra Fishing Co v Farran the Commercial Court removed an arbitrator because of doubts about his impartiality. He had a financial interest in his father's law firm and the firm and his father acted for one of the parties and derived significant financial benefit from that continuing commercial relationship. He had failed to disclose this connection to the parties.
Religious and cultural background
Traditionally we have ignored the religious and/or cultural background of our judges. In Locabail v Bayfield Properties, the Court of Appeal held that an objection cannot be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge – and many other associations besides. An application for recusal was rejected on this ground in Seer Technologies Inc v Abbas: the defendant considered himself to be at a disadvantage in conducting his proceedings before Jacob J since the judge was Jewish and he was an Arab.
Allegations of bias on the ground of procedural irregularity or unfairness (sometimes referred to as a breach of the rules of natural justice) are often made against adjudicators in particular. Three such cases have already been reported this year. In Rydon Maintenance Ltd v Affinity Sutton Housing Ltd the court rejected the allegations that the adjudicator had pre-judged the issues. An adjudicator can take the initiative, set the procedure and adopt a more interrogatory style. The adjudicator met with one side alone but the meeting was recorded and transcribed and the other party was given an opportunity to respond and did so. An allegation of bias in Ecovision Systems Ltd v Vinci Construction UK Ltd was also held to be without substance.
In Paice v MJ Harding (T/A MJ Harding Contractors), on the other hand, the adjudicator chose not to disclose the fact that one of the parties had telephoned his office two months before the adjudication. The court held choosing not to disclose the conversation made the possibility of bias more likely and refused to enforce the adjudicator’s decision.
Allegations of bias are time-consuming and costly. It is important for legal practitioners to understand the principles so that they can advise their clients about the merits of an application. Where one party is a litigant in person, if there are known to be potential grounds for apparent bias, such as connections between the judge and the lawyers or witnesses, it may be worth approaching the judge before the hearing in order to avoid an application at a later stage. The worst outcome from the point of view of time and cost is for the application to be made after the hearing has begun, or even after it has concluded. Both judges and lawyers are going to have to become more alive to this issue.