“A BIT OF A SHORT BALL”: STATING THE JUDGE’S PRELIMINARY VIEW AS TO CREDIBILITY DOES NOT AMOUNT TO BIAS

There is an interesting discussion as to Judicial bias in the judgment of Mrs Justice Theis in X v Y (Permission to Appeal) [2019] EWHC 1713 (Fam).

“The interjections by the judge during the hearing should be viewed not as a demonstration of bias, but of him seeking to afford the father every opportunity to give his best evidence.”

THE CASE

A father was seeking permission to appeal the result of a two day hearing in which oral evidence was heard.  One of the proposed grounds of appeal was that there had been apparent bias from the judge. (Permission to appeal was refused on this ground, permission was allowed in one small respect in relation to the form of the order made in relation to child contact).

THE JUDGMENT ON THE ALLEGATIONS OF JUDICIAL BIAS

Ground 5 – apparent bias
This is based on the judge’s conduct during the hearing and includes the way he dealt with errors in the judgment (such as the mother’s earnings) and the maintenance for C during a gap year
    1. Mr Feehan submits there was a significant feeling of unfairness because of the comments made by the judge during the hearing, some of which, he submits, may give rise to regulatory issues for the father as a solicitor. In oral submissions he drew attention to the two pages of questioning of the father by the judge regarding his income and earnings. B was admitted to hospital on the afternoon of the second day, when closing submissions were due to be made. Both parents left court to attend the hospital. Mr Feehan submits the judge’s refusal of Dr Proudman’s request for an adjournment to enable her to take instructions prior to making submissions only added to the perception of bias against the father. He submits this perception was increased in circumstances where the judge stated at the outset of the submissions made by Dr Proudman that he did not find the father’s evidence credible. He said ‘…Dr Proudman, the problem is you are going to have to convince me to believe a word your client is saying. That is the problem. I do not often say that in family cases because there is often a lot to be said on both sides but it is not looking good.’ He says a little later ‘So over to you, although I appreciate that is a bit of a short ball’.
    2. In their helpful skeleton argument Mr Feehan and Dr Proudman set out the parts of the transcript they rely on including remarking that Dr Proudman ‘…can take instructions till the cows come home but he has had ample opportunity in the witness box to give some evidence about it’, referring to the fact that the firm the father works for as a consultant are also the father’s solicitors in the case, remarking that ‘..stinks really, to be honest’. He referred to the father ‘…not telling me the truth…’ and that he considered the father is ‘…very controlling…’, and he referred to ‘…a topic I have to raise with you [Dr Proudman] and the Solicitors Regulation Authority…’ and ‘You look him in the eye and he has a sort of complete conviction that nobody can possibly doubt him. I am wondering how that plays out in his life’.
      1. The test, as set out in Porter v Magill [2001] UKHL 67, is whether the fair-minded informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased. As Davis LJ stated in Sarabjeet Singh v Secretary of State for the Home Department [2016] EWCA Civ 492 at [35] ‘…In general terms, there need be no bar on robust expression by a judge, so long as it is not indicative of a closed mind. In fact, sometimes robust expression may be positively necessary in order to displace a presumption or misapprehension, whether wilful or otherwise, on the part of an advocate or litigant on a point which has the potential to be highly material to the case.’ He goes on to emphasise the need to consider the proceedings as a whole.
    3. In the written submissions of the mother she makes a number of points:
(1) In refusing the application for an adjournment prior to submissions the judge specifically gave the parties the opportunity to amend or add to any submissions made prior to judgment and by the end of that day it was clear the judgment would be two days later on 1 March. That opportunity was not taken up by the father, save to inform the court that he would vacate the family home by the following Monday.
(2) The interjections by the judge during the hearing should be viewed not as a demonstration of bias, but of him seeking to afford the father every opportunity to give his best evidence. For example, on day two the judge admitted documents from the father, even though they had not been seen by any of the advocates, including his own. As the judge stated, he needed to give the father ‘every opportunity’.
    1. Having considered the proceedings as a whole I am not satisfied the ground of appeal alleging bias has any realistic prospect of success. The court has the benefit of a transcript of the two-day hearing, as well as the hearing on 10 May. Mr Feehan placed some reliance on the questioning of the father by the judge in relation to his income, stating he was not interested in the father’s tax returns but sought annual accounts, the requirement for which had been deleted from a previous questionnaire. Those questions need to be looked at in the context of the transcript as a whole and the requirement of parties in proceedings such as these to give full and frank disclosure. The judge’s intervention was after the father had given extensive evidence on the first day about his income and had then produced a print-out of ‘the income position from May of last year until now..’whilst in the witness box on the second day. It was not until the mother’s counsel had asked a number of questions about his income (covering a number of pages of the transcript) and the document that had been produced did the judge then ask some questions. The cross examination of the mother’s counsel had suggested that the figures in the print-out appeared to establish that the father worked only a limited number of hours per month, which despite a number of attempts the father seemed unable to properly explain or account for. The judge’s questions sought to try and understand what underpinned the figures and how that related to the document the father produced on the second day. The father’s answers were becoming increasingly vague, the following exchanges illustrate the point:
[Mother’s counsel]: Is it your case, [father], that at your – at the height of your work in the last nine months, you worked 25 hours per month?
A: The way I have been working is not…I don’t have this…It’s based on whatever those referrals are, whatever commission is earned, so…
Q: …Does it sound right that at your maximum in the last nine months, you worked 25 hours or thereabouts in one month?
A: I can see what you’re trying to say and I understand that, but I’m…
Judge Tolson: [father] please. It is a question I have asked you. Please answer it?
A: If you’re saying I should be working more, I’m not…’
  1. During his exchanges with the father the judge sought to explain his concerns about the quality of the father’s evidence and the impact that could have. After the conclusion of the evidence and during submissions the judge, in somewhat direct terms, set out his concerns about the father’s evidence but making it clear his mind remained open, for example by saying to Dr Proudman ‘So over to you, although I appreciate this is a bit of a short ball’. Additionally, at the conclusion of oral submissions the judge made it clear he would consider any additional written submissions prior to judgment. This all supports the position that he had not closed his mind. The credibility of the parties was clearly an important part of the case and he wanted to make sure the parties, in particular the father bearing in mind his concerns, had every opportunity to put any relevant information in front of the court.
  2. I do not regard the way the judge dealt with the error regarding the mother’s income on 10 May or the term of the nominal order for maintenance as having any realistic prospect of success either in their own right or as part of the wider bias ground. In relation to the former the judge did not just amend the figure he conducted a further exercise calculating the capitalisation of the maintenance loss for the wife to check the overall fairness of his decision. The maintenance order point was covered in the open offer letter, so came as no surprise to the father.