BREACHING THE RULES, RELIEF FROM SANCTIONS, PERMISSION TO APPEAL AND THE CORRECT JUDGE TO HEAR THE APPEAL
There is much for the litigator to ponder in the Court of Appeal judgment in Broughal v Walsh Brothers Builders Ltd & Anor  EWCA Civ 1610. Firstly how did the claimant come to be in a position when it breached a court order that it give the defendant a mandate for medical records (hardly an onerous task). Secondly the issue of whether a judge who had refused permission to appeal could properly hear that appeal if permission had been given.
“Judge Baucher did no more than to indicate in her order of 15 September that from a consideration of the papers the appeal would have no real prospect of success and that there was no other compelling reason to grant permission. That was the test she was required to apply but there is nothing in the terms of her decision to indicate that she would not be open to further argument and persuasion were the matter to be restored to her for an oral hearing or (as it happened) were she assigned to hear the full appeal”
The claimant brought an action for personal injury. The defendant company was dissolved and the action continued against their insurer. A Court Order was made that the claimant give disclosure to the insurer by providing them with signed mandates. The claimant failed to provide mandates and a peremptory order was made.
Compliance was to be by 12.00 pm on the 4th May 2016.
At 12.48 on the 4th May the defendant received five signed mandates. However these were for release of the records to the claimant’s solicitors, not the insurer (as required by the order.
The claimant applied for relief from sanctions. At that hearing it was accepted the claimant was in breach. Relief from sanctions was refused. The claimant’s case remained struck out.
APPLICATION FOR PERMISSION TO APPEAL
The claimant applied for permission to appeal, not only against the refusal to grant relief from sanctions but also the original peremptory order. That application was considered on paper By HH Judge Baucher
“Permission to appeal the order of 1st August is refused on the grounds there is no real prospect of success nor any other compelling reason why an appeal should be heard CPR 52.3(6)(a)&(b). The Appellant accepted in the court below he was in breach of the order dated 19th April. On appeal that is not accepted. There is no explanation for the change in position. The District Judge applied the three stage approach in Denton and his decision was one he was entitled to make. There is no basis to interfere with that decision.”
The claimant renewed the application for permission and was granted by HH Judge Saggerson. The Court of Appeal noted:
“It is clear from his judgement that he gave permission to appeal both in relation to the construction and effect of paragraph 5 of District Judge Lightman’s order and more generally in relation to how Deputy District Judge Ghallingham had exercised his discretion. But it is equally clear that permission to appeal was only applied for and granted by Judge Saggerson in respect of the Deputy District Judge’s order of 1 August 2016 and not in respect of the earlier order of 14 April.”
THE APPEAL BEFORE THE CIRCUIT JUDGE
The appeal was listed before HH Judge Baucher. The claimant argued that the judge should recuse herself on the grounds of apparent bias, having refused the initial application on paper. Attempts had been made to find another judge, however this could not be done. The judge refused the application to recuse herself.
The appeal proceeded and was not successful.
“The hearing of the appeal then proceeded. Mr Engelman attempted to persuade the judge that he had permission to appeal not only the order of 1 August 2016 but also the earlier order of District Judge Lightman. The judge rejected this and was clearly right to do so. It is apparent from the order made by Judge Saggerson on 25 November 2016 that permission to appeal had only been granted in respect of the order of 1 August. The judge heard argument both about the construction of paragraph 5 of the 14 April order and more generally about the way in which Deputy District Judge Ghallingham had approached the issue of relief from sanctions. The judge then delivered a detailed and careful judgment in which she indicated that she would not have been minded to allow Mr Engelman to resile from the concession he had made before the Deputy District Judge on 1 August not least because the concession was rightly made. Paragraph 5 of the order of 14 April required the claimant to provide original mandates which would allow Zurich to obtain his medical records. He had not done this. In relation to the refusal by Deputy District Judge Ghallingham to grant relief from sanctions, the judge said that the breach of the 14 April order was serious; that there were no good reasons which could excuse that; and that the Deputy District Judge had taken all relevant matters into account in deciding how to exercise his discretion under CPR 3.9. There were therefore no grounds for interfering with the order which he had made”
THE APPEAL TO THE COURT OF APPEAL
The grounds of appeal to the Court of Appeal were narrow. It was not argued that the judge erred.
None of this is challenged on this appeal. Mr Al Mustakim who appears for Mr Broughal on this occasion has not sought to argue that the judge’s reasoning discloses any error of principle or is other than a straightforward application of established principles in relation to the review of the exercise of a judicial discretion. Nor is it or could it be suggested that the judge displayed anything approaching hostility or a closed mind in the way in which she dealt with Mr Engelman’s submissions at the appeal hearing. We have been provided with a transcript of the hearing from which it is clear that the judge listened to and engaged with counsel’s submissions in the usual way and Mr Engelman was both allowed to and encouraged to develop his argument in response to the judge’s questions.
The sole ground of appeal is that having originally refused permission to appeal Judge Baucher would be taken by the informed observer to have approached the appeal hearing with a predisposition towards dismissing the appeal either because she had closed her mind to the appellant’s case or because she would have been inclined (whether consciously or unconsciously) towards reaching a conclusion that was consistent with her earlier order.
THE COURT OF APPEAL DECISION
The judgment contains a detailed review of the cases relating to judicial bias and apparent bias. It was held that previous involvement in the appeal process does not, of itself, preclude a judge from hearing the appeal.
It is, I think, significant that the challenge to the involvement of Laws LJ (and in Dwr Cymru Cyfyngedig to that of Richards LJ) at the full appeal hearing was not rejected in either case on the basis that the judge in question would be part of a constitution of three judges. The impact which the judge’s previous involvement would have in the eyes of a fair-minded observer was considered on the premise that if his own participation was, so to speak, tainted or precluded by his previous involvement then that would undermine the decision taken on the substantive appeal. The decision in Sengupta is therefore binding authority in my view for the proposition that the prior involvement of a judge at the permission stage involving a consideration of the papers does not disqualify that judge from hearing the substantive appeal (or, for that matter, an oral renewal of the application) unless the judge has expressed his views in such a way as to indicate to any fair-minded lay observer that he has reached a concluded view and is unlikely to be open to further argument. Many of these cases will be highly fact-sensitive and will not necessarily involve the use of extreme language or behaviour as Ezsias illustrates. But they will all be cases in which it will be readily apparent from a consideration of all the relevant facts and surrounding circumstances including the nature of the claim that the judge appears to have come to a fixed and concluded view on the merits. These cases are by their very nature likely to be rare. There is certainly nothing inherent in the process which is inimical to the possibility of a fair oral hearing by the judge who has made the paper decision. The test for granting permission imposed by CPR 52 (does the appeal have a real prospect of success?) does of course mean that the judge who refuses permission will have concluded that the grounds of appeal are not sufficient even to qualify as seriously arguable. For the purposes of granting permission, it is not necessary to consider that the appeal is likely to succeed. But, for the reasons given by Keene LJ in Sengupta, that is not enough in itself to disqualify the judge from hearing the appeal. With the benefit of oral argument, the judge will be open to being persuaded that his or her initial view was wrong. This is an everyday feature of litigation both at first instance and in the Court of Appeal.
In the present case Judge Baucher did no more than to indicate in her order of 15 September that from a consideration of the papers the appeal would have no real prospect of success and that there was no other compelling reason to grant permission. That was the test she was required to apply but there is nothing in the terms of her decision to indicate that she would not be open to further argument and persuasion were the matter to be restored to her for an oral hearing or (as it happened) were she assigned to hear the full appeal.