THAT JUDGE IS BIASED AGAINST ME, WE CAN'T GO ON: THE APPROPRIATE RESPONSE

September 1, 2016 · by · in Appeals, Uncategorized

As we have seen many times in this blog trial judges sometimes have to make robust findings of fact about the credibility of witnesses. In Howe -v- Gossop [2016] EWHC 2169 (Ch) His Honour Judge Behrens (sitting as a High Court Judge) had to consider a situation where robust findings had been made but there were further issues to be decided.  The claimant argued that the judge was biased and a fair trial not possible.

“There can be no criticism of the Recorder in assessing the witnesses at that time. Indeed it was part of his duty to do so.”

KEY POINTS

  • A trial judge who had made robust findings of fact adverse to a party was not to be assumed to biased so as to have to recuse themselves in relation to the trial of future issues in the same case.
  • The claimants’ appeal against a refusal of a Recorder to recuse himself was refused.

THE CASE

The claimants brought an action for breach of covenant and trespass. There was a three day trial. The Recorder “expressed his views on the credibility of witnesses”

“In that assessment he formed a very adverse impression of Mr Howe. He described him as tendentious in character with an overbearing personality. He concluded that Mr Howe had attempted to bribe his son (who gave evidence on behalf of the Defendants) to give evidence in accordance with his (Mr Howe’s) preferred version of events. He described this as an attempt to pervert the course of justice. Unless corroborated the Recorder did not accept Mr Howe’s version of events as reliable. On the other hand he found the evidence of Mr Howe’s son and that of the Defendants to be reliable.”

After the initial judgment there remained issues to be tried and these were listed for a three day trial in front of the same recorder.

THE CLAIMANTS’ ALLEGATIONS OF BIAS

The claimants made an application that the Recorder recuse himself. He declined.  The claimants argued that there were now further disputed issues of fact and the Recorder had put himself in the position of prejudging these issues.

It was recognised, however, that a recusal meant that the trial would have to be restarted.

THE CLAIMANTS’ ARGUMENTS

“The claimants argued that there was now a danger of bias, or a perception of bias, on the part of the Recorder, relying on the Court of Appeal decision in Steadman-Byrne -v- Amjad [2007] EWCA Civ 625.
  1. Mr Cameron placed considerable reliance on the decision in Amjad and pointed out that it was not referred to in Otkritie.
Amjad was a personal injury action by 3 claimants arising out of a road traffic accident. Liability was admitted in respect of 2 claimants but denied in respect of the third on the ground that he was not in the car. The District Judge heard the evidence of the Claimants in the morning. He then adjourned and invited Counsel into his room. He then said:
(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.
  1. The judgment of the Court was given by Sedley LJ. In paragraph 10 of his judgment he set out the test for bias and explained that
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.
  1. In paragraph 12 Sedley LJ posed the question:
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.
  1. In paragraph 14 he endorsed 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.”
  1. The remainder of paragraph 14 is also important because it shows that it was the District Judge’s remarks at (10) to (12) which established the bias:
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.

THE MAJOR DIFFERENCE WHEN A TRIAL JUDGE HAS HEARD EVIDENCE

The judge rejected the argument that this was a comparable case. There was a major difference between a judge who expressed a view before hearing evidence and a trial judge who had made assessments of witnesses after hearing the evidence.

  1. It is, to my mind, plain that this is a very different case from Amjad. First, it is not a case where no evidence has been given by Mr Howe. Rather it is a case where both sides have given evidence and Counsel has had the opportunity to make such submissions as he thought appropriate about the evidence. Second, the assessment of Mr Howe was made precisely when it ought to have been made – in the draft judgment. There can be no criticism of the Recorder in assessing the witnesses at that time. Indeed it was part of his duty to do so. Even though the Recorder invited further submissions on Claims 6 and 7 that did not prevent him from dealing with the other claims. In order to do so he needed to assess the credibility of the witnesses. Third, there is nothing in the Recorder’s draft judgment to indicate that he was guilty of rigid thinking against Mr Howe such as the District Judge demonstrated in Amjad. The Recorder’s assessments were based on the evidence and the impressions on him in the witness box. An important factor was the attempt by Mr Howe to bribe his son to give evidence in accordance with Mr Howe’s views. In the result I do not gain any assistance from Amjad which seems to me very much a case on its own facts. It does not surprise me in the least that it was not referred to in either Otkritie or Harb.
  2. In my view this case is governed by the general rule as set out in paragraphs 13 and 22 of Otkritie. In my view the Recorder asked himself the right questions and gave the right answers. He asked himself if he felt any bias against Mr Howe and answered in the negative. He then applied the correct test as to imputed bias. In the light of the further guidance in paragraphs 69 – 72 of Harb he was entitled to conclude that a fair minded and informed observer would not consider that there was a real possibility of bias.
  3. I note that the Recorder expressly considered and made the point that he would have no regard to extraneous matters and holds no predilections or preferences. There is no evidence to suggest that he is wrong about that. I note from paragraphs 13 and 22 of Otkritie that there must be substantial evidence before the general rule can be overcome.
  4. In his supplemental skeleton argument Mr Cameron sought to argue that the passage I have set out from the Form N460 is “entirely wrong”. With respect I do not agree. It has to be borne in mind that the Recorder has made findings in relation to Claims 1 to 5 and Claim 8. With the exception of Claim 3 there is no overlap between these claims and the allegations of trespass/proprietary estoppel in relation to the green/yellow land. Furthermore, the Recorder’s findings on Claim 3 were related to the construction of the covenant and not to the overlapping trespass allegations. He is dealing with those allegations in Claims 6 and 7. The amendment to the Counterclaim related solely to the relief claimed in Claims 6 and 7. In my view the Recorder was fully entitled to say that his findings in relation to Claims 1 to 5 and 8 would stand and would not be relitigated. It was a proportionate course to take. I do not read the paragraphs as suggesting that the Recorder has closed his mind in relation to Claims 6 and 7. Accordingly the findings in relation to those Claims in his second draft judgment can only be regarded as provisional views and will have to be reconsidered in the light of the fresh evidence permitted by the Recorder. It has to be remembered that the purpose of Form N460 is to provide brief reasons for refusal of permission to appeal. It is not to be construed as an Act of Parliament. This is especially the case where, as here, the Recorder has provided a written decision which set out his reasons in detail.”

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