ALLEGATIONS OF JUDICIAL BIAS AND THE INFORMED OBSERVER TEST: THE LAW AND PRACTICE

In Kimyani -v- Sandhu [2017] EWHC 151 (Ch) Master Matthews dealt with the difficult issue of a litigant alleging judicial bias.  This judgment emphasises the fact that the test is one of the fair minded and informed observer and not that of the litigant in question.

“There is something rather unreal about asking a judge to consider whether he or she is actually biased against a party in litigation. I record formally here that I do not consider that I am.But it is clear that the defendant so argues.

KEY POINTS

  • A court considering an allegation of bias on the part of the judge considers it by reference to the fair minded and informed observer.
  • The views of the litigant are not determinative. A litigant is unlikely to be objective.

THE CASE

An action was proceeding in relation to charging orders over the defendant’s house and estate accounts. There had been several hearings where the defendant had represented herself.  The defendant applied for the Master to recuse himself on the grounds of “bias and unfair proceedings”.

THE LAW

The Master reviewed the legal principles in detail.

    1. So far as relevant to this case, there are two important and related rules in the administration of justice. One is that no-one should be a judge in his or her own cause: Dimes v Grand Union Canal (1852) 3 HLC 759, 793. The other is, as Lord Hewart CJ once famously remarked,
“that justice should not only be done, but also must be manifestly and undoubtedly be seen to be done”: R v Sussex Justices, ex p McCarthy [1934] 1 KB 256, 258.
The two rules overlap. It is obvious that, if a person judges his or her own cause, justice will not be done, or at any rate will not be seen to be done. Where a judge has a pecuniary or other significant personal interest in the outcome of the case, such as the promotion of a cause, the judge is automatically disqualified: R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119, HL. It does not matter whether the judge knew or not of the interest.
    1. But the second rule goes wider. It extends beyond cases where the judge has a personal interest to cases of bias. As the Court of Appeal once put it,
“Bias is an attitude of mind that prevents the judge from making an objective determination of the issues that he [or she] has to resolve”: Re Medicaments and Related Classes of Goods (No 2) [2001] ICR 564, [37].
The law distinguishes actual bias from apparent bias. The former is subjective, and deals with the judge’s state of mind, while the latter is objective, and deals with the judge’s conduct and the surrounding circumstances. Where a judge is actually biased in a decision, then justice has not been done. Where a decision is tainted by apparent bias, then justice is not seen to be done. Cases holding that there has been actual bias employed by a judge are rare. Most cases dealing with bias are argued and decided on the basis of apparent bias.
    1. As to the law in relation to recusal by judges for bias, the claimants cited Howell v Lees-Millais [2007] EWCA Civ 720 (referring to Porter v Magill[2002] 2 AC 357, Lawal v Northern Spirit [2003] ICR 856, HL, and AWG Group v Morison [2006] 1 WLR 1163, CA). The general principle is not in any doubt. In Porter v Magill [2002] 2 AC 357, the House of Lords endorsed the approach taken by Lord Phillips MR in Re Medicaments and Related Classes of Goods (No 2) [2001] ICR 564, as follows:
“[85] … 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.”
It should also be noted that the mere fact that a judge has been guilty of shocking, even deplorable behaviour, is not enough: Harb v HRH Prince Abdul Aziz bin Fahd bin Abdul Aziz [2016] EWCA Civ 556, [68].
    1. In her skeleton argument, the defendant cited only Porter v Magill. That is a case about apparent bias. But she is not a lawyer, and although in section 3 of the application notice she seeks my recusal expressly on the grounds of “real danger of bias” (see also the evidence at section 10 of the notice), it does appear that she is also making allegations against me of actual bias. I will consider this in more detail shortly.
    2. So far as concerns the “informed and fair-minded observer”, in Harb v HRH Prince Abdul Aziz bin Fahd bin Abdul Aziz [2016] EWCA Civ 556, the Court of Appeal said:
“[69] … We would however, emphasise two important points. First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The ‘real possibility’ test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias… [T]he litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business. Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded.
[ … ]
[72] Secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances, and it is for the court to make an assessment of these… It was held in Virdi v Law Society [2010] EWCA Civ 100 that the hypothetical fair-minded observer is to be treated as if in possession of all the relevant facts and not only those that are publicly available…”
    1. So the hypothetical informed and fair-minded observer knows all the relevant facts, whether publicly available or not, and has a perception of the case which is not that of the litigant, but is instead more objective and dispassionate. That is the standard to be applied.
    2. But the court must apply these rules not only for the protection of the litigant against whom bias or apparent bias may operate, but also for the benefit of the other litigants involved, and indeed the wider public. This is because in our system litigants are not permitted to choose their judges. As Chadwick LJ once said:
But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant — whether it be a represented litigant or a litigant in person — criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised — whether that criticism was justified or not“: Dobbs v Tridos Bank NV [2005] EWCA 468; see also Re JRL, ex parte CJL (1986) 161 CLR 342, 352, per Mason J.
So the judge asked to recuse him or herself should only do so where the case is properly made out. Another way of putting this point is that the rule is a rule of law, and confers no discretion on the judge. If the case crosses the line, the judge must not hear the case. If it does not do so, the judge cannot decline to do so.
APPLICATION IN THIS CASE
Actual bias
    1. I deal first with the question of actual bias. There is something rather unreal about asking a judge to consider whether he or she is actually biased against a party in litigation. I record formally here that I do not consider that I am. But it is clear that the defendant so argues. In her skeleton argument, for example, she says:
“Master Matthews has blatantly clearly taken side of claimant, causing anxiety stress and harm” (top of p 5, (dd));
“Master Matthews is making sure that no other judge ever finds out about the false claim of Paul Prentice solicitor of claimants…” (p5, (hh));
“Tribunal is biased and siding with claimants therefore Master Matthews must recuse himself and allow a partial [sic] and just judge” (top of p 6).
    1. There are allegations which appear to be of actual bias in the defendant’s witness statement which I have summarised as numbers 7 and 11 under paragraph [34] above. They are responded to under the same numbers in paragraph [35] above. Those responses are to the effect that the defendant is wrong in her allegations. Moreover, there is no support for them in the claimants’ evidence on the application. My conclusion is that they are baseless. There is in fact no credible evidence of actual bias by me.
Apparent bias
    1. I turn then to apparent bias. There are allegations made in the document attached to her letter of 23 August 2016, summarised in paragraph [27] above under four sub-paragraphs. I have dealt with those points in paragraph [28]. There are allegations made in her witness statement, summarised in paragraph [34] above under eighteen sub-paragraphs. I have dealt with those points in paragraph [35]. Then there are allegations made in the skeleton argument and at the hearing. These are set out and dealt with in paragraphs [36]-[44] above.
    2. Many of the allegations made in fact relate to the conduct of others, rather than of me, and the informed and fair-minded observer could not conclude from them that there was a real possibility that I was biased. They are the allegations dealt with in sub-paragraphs (2), (4), (5), (9), (12), (18) of paragraphs [34] and [35], and in paragraphs, [39], [40] and [42]. Accordingly, I do not consider these further.
    3. I deal with the remainder as follows, referring to the paragraphs above where the allegations appear.
Document attached to the letter of 23 August 2016
    1. Paragraph [27](1): proceeding with the hearing although a long document had just been served on the defendant: The informed and fair-minded observer would accept what I did as practical and sensible in the context of limited time and resources, rather than continually adjourn hearings, and would not see it as indicative of a real possibility of bias.
    2. Paragraph [27](2): not allowing other masters to deal with the case even though I was not the assigned master: The informed and fair-minded observer would see that the defendant was mistaken as to my not being the assigned master and as to the practice of the chancery masters, and therefore would not see this as indicative of a real possibility of bias.
    3. Paragraph [27](3): relationship with Ten Old Square chambers: The informed and fair-minded observer, knowing the facts, would realise (a) that the defendant was simply mistaken about the way barristers are organised and also about the relationship between that set and me, and (b) that even if there were a relationship that would not prevent Mr Roseman from appearing before me. So it would not indicate a real possibility of bias.
    4. Paragraph [27](4): Master Bragge’s decision was in favour of the defendant, and my decisions are against her: The informed and fair-minded observer, knowing the facts, would see that the defendant was mistaken about Master Bragge’s decision, but in any event would not consider that because judge A finds for a party on one aspect of a case, therefore judge B is possibly biased just because that judge finds against the same party on some other aspect or aspects of the same case.
Allegations in the defendant’s witness statement
    1. Paragraph [34](1): Master Bragge’s judgment in the defendant’s favour: This is in substance the same point as under paragraph [27](4), and the answer to it will be the same too.
    2. Paragraph [34](3): claim could have been settled by mediation: The informed and fair-minded observer, knowing the facts, including the poor relationship between the parties and seeing what happened at the hearings, would not have considered that the case could have been settled by mediation, or at the least would consider that it was not unreasonable of me to take that view. There is nothing in this to suggest a real possibility of bias by me.
    3. Paragraph [34](6): I do not know the case: The informed and fair-minded observer, knowing the facts, would be aware of my preparation for each hearing, and could not conclude that absence of knowledge meant there was a real possibility of bias on my part.
    4. Paragraph [34](7): I have a closed mind and have stated that I have predetermined the case: The informed and fair-minded observer, knowing the facts, would be aware that I have never so stated, and that I have brought an open mind to each hearing. There is nothing in this to suggest a real possibility of bias by me.
    5. Paragraph [34](8): defendant forced into mental health treatment: The informed and fair-minded observer, knowing the facts, would be aware that there was no medical evidence to this effect, and only the bare assertion of the litigant herself to support it. In those circumstances that observer could not conclude that there was a real possibility of bias on my part.
    6. Paragraph [34](10): hearings in the case have been cancelled by me: The informed and fair-minded observer, knowing the facts, would be aware of the reasons for each such cancellation and would not consider that any such cancellation indicated that there was a real possibility of bias by me.
    7. Paragraph [34](11): I knew that the debt the subject of the first interim charging order was not due: The informed and fair-minded observer, knowing the facts, including (i) the fact that I had not been involved in the earlier stages when the costs orders were made, (ii) the procedure for granting interim charging orders and then considering them on a return day with a view to making them final or discharging them, and (iii) the evidence given in the papers before me when I made the interim order, would not assume that in making an interim order I either knew or did not know whether the debt was due, but rather that I was relying on the evidence in the papers before him. Accordingly, that observer would not consider that I knew that the debt was not due, and accordingly that there was a real possibility of bias by me.
    8. Paragraph [34](13): application to set aside interim charging order has never been heard: The informed and fair-minded observer, knowing the facts, would understand why it has not yet been heard, and would not consider that this showed a real possibility of bias on my part.
    9. Paragraph [34](14): claimants’ without notice applications are always granted: The informed and fair-minded observer, knowing the facts, would be aware that the only such applications in this case are those for interim charging orders, which are governed by a particular procedure which allows for further consideration on a return day, and that operating this system does not suggest a real possibility of bias by me.
    10. Paragraph [34](15): denied transfer of case to Staines: The informed and fair-minded observer, knowing the facts, would be aware of the reasons why it has not been heard yet, and would not consider that they indicated that there was a real possibility of bias by me.
    11. Paragraph [34](16): failure to remain impartial by allowing false claims to be made: The informed and fair-minded observer, knowing the facts, would not consider that allowing a party to put forward its own case within the rules, even in support of an interim charging order, before the return day at which the allegations could be challenged, indicated that there was a real possibility of bias on my part.
    12. Paragraph [34](17): I have ignored her skeleton arguments and oral submissions: The informed and fair-minded observer, knowing the facts, including my preparation for each hearing and my willingness to listen to the defendant during each hearing, would not agree that I had ignored them, and hence could not consider that this showed a was a real possibility of bias by me.
Allegation in the skeleton argument
    1. Paragraph [36]: I have ignored the defendant’s evidence that the debt was not due: This has in substance already been dealt with, in paragraphs [68] and [72] above. The informed and fair-minded observer, knowing the facts, including the procedures for dealing with charging orders, could not consider that my actions showed a was a real possibility of bias by me.
    2. Paragraph [38]: preferential treatment for claimants in granting requests for adjournments: The informed and fair-minded observer, knowing the facts, including those stated in that paragraph, would not consider that they indicated that there was a real possibility of bias by me.
    3. Paragraph [43]: delaying matters unnecessarily since July 2015: The informed and fair-minded observer, knowing the facts, including those stated in that paragraph, would not consider that they indicated that there was a real possibility of bias by me.
Conclusion
    1. I conclude that there is no substance in any of the defendant’s complaints of bias or the appearance of bias by me, and the application for me to recuse myself from hearing further applications in this claim is dismissed. Once this judgment is handed down, I will make arrangements to relist the outstanding hearings.

RELATED POSTS