ALLEGATIONS OF JUDICIAL BIAS REJECTED: HIGH COURT DECISION TODAY

In Ameyaw v McGoldrick & Ors [2020] EWHC 1787 (QB)  Mrs Justice Steyn refused an application that she recuse herself.  The first part of the judgment summarises the law in relation to bias when the judge knows the counsel involved.

THE CASE

The claimant sought an order that the judge recuse herself from hearing her case on the grounds: (i) she had been in chambers with counsel for the defendants (indeed been his pupil supervisor); (ii) the way in which the judge had dealt with an earlier hearing.

THE APPLICATION ON THE GROUNDS THAT THE JUDGE KNEW THE DEFENDANTS’ BARRISTER

This argument was considered and rejected by the judge.
    1. In my judgment, the Claimant’s contention that there is an appearance of bias by reason of my former membership of the same chambers as the Defendant’s counsel, and the fact that he was once one of my pupils and I was one of his pupil supervisors, is ill-founded.
    2. The fact of a judge having been a member of the same chambers as counsel for a party falls squarely within the examples given by the Court of Appeal in Locabail at [25] of circumstances which do not, at any rate ordinarily, give rise to any soundly based objection. The Court of Appeal in Taylor v Lawrence [2003] QB 528 also made clear that it is not only commonplace for Counsel to appear before judges who were formerly members of their chambers, such professional contacts between the Bar and the Judiciary do not give rise to a real possibility of bias.
    3. I have borne in mind that in Lawal Lord Steyn observed at [22] that while the informed observer can, as Chadwick LJ said in Taylor v Lawrence “be expected to be aware of the legal traditions and culture of this jurisdiction”, “he may not be wholly uncritical of this culture”, and standards may change over time. However, Lawal was concerned with the position where a fee-paid judge who had chaired a tribunal on which a lay wing member had sat, subsequently appeared as a barrister before that lay wing member. The House of Lords did not address the issue of contacts between members of the Bar and those sitting as salaried judges with secure tenure.
    4. It is clear that the application of the appearance of bias principles to contacts between members of the Bar and the Judiciary remains as stated in Taylor v Lawrence. The Court of Appeal addressed the issue in Watts v Watts [2015] EWCA Civ 1297, upholding a decision by a fee-paid judge not to recuse herself. The circumstances which gave rise to the recusal application were that the barrister for one of the parties was junior Counsel to the fee-paid judge in another case, which they had been working on together for the past year.
    5. Sales LJ (with whom the other members of the Court of Appeal agreed) concluded at [28]:
“i) The notional fair-minded and informed observer would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges and would understand that those standards are part of a legal culture in which ethical behaviour is expected and high ethical standards are achieved, reinforced by fears of severe criticism by peers and potential disciplinary action if they are departed from: Taylor v Lawrence [2001] EWCA Civ 119, [33]-[36]; Taylor v Lawrence [2002] EWCA Civ 90[2003] QB 528, [61]-[63]. These aspects of the legal culture of the Bench and legal professionals are not undermined by the fact that some litigation is now funded by means of CFAs;
ii) The notional fair-minded and informed observer would understand that a part-time judge’s approach to the case she is trying and to her relationships with other professionals will be governed by these professional standards. There is no reason to think that a judge would allow her professional training and ethics to be overridden by a concern not to upset a junior counsel she is leading in other litigation. Moreover, the judge would know that the junior counsel would himself understand that she is bound by strict professional standards, and hence would have no expectation that she would do anything other than act in accordance with them. So the judge would not expect any disgruntlement or difficulty to arise in her relationship with the junior counsel even if she makes a decision adverse to him in the case she is trying. Accordingly, the idea that the judge would adjust her behaviour as judge to avoid upsetting the junior counsel is far-fetched indeed. The notional fair-minded and informed observer would not consider that there was any genuine possibility of this occurring;
iii) … The position is underlined by Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242[2007] 1 WLR 370. In that case, a personal injury claim was tried by a practising barrister and part-time judge sitting as a recorder, who was the head of the chambers to which both counsel for the claimant and counsel for the defendant belonged and who had also acted for the defendant or associated companies in the past and might do so in the future. This court rejected the suggestion that an appearance of bias arose by reason of the connection between the recorder and counsel through being members of the same chambers: [17]-[19]; it was only because the recorder regarded himself as having an on-going barrister-client relationship with the defendant that this court held he should have recused himself. Similarly, in Resolution Chemicals at [46] this court referred to the idea that the reasoning in Lawal “would preclude a judge from hearing a case in which his former pupil master or regular instructing solicitors were acting for one of the parties, or a deputy High Court judge from ever hearing a case in which a more senior member of his or her chambers was acting for one of the parties” as something which it regarded as obviously untenable;
iv) As both the Taylor v Lawrence judgments and these other decisions indicate, relationships between members of the Bar, or between members of the Bar and their clients, can be much closer than that between the deputy judge and counsel for the respondent in the present case, yet because the relationships are mediated through known professional standards no appearance of bias arises.” (emphasis added)
  1. The passage I have quoted demonstrates that the Court of Appeal has held it was untenable to contend that there was an appearance of bias in circumstances where one of the parties is represented by a barrister who was once the fee-paid judge’s pupil supervisor or where the fee-paid judge and the barrister representing one of the parties were members of the same chambers, and the barrister was the more senior. It is all the more untenable to suggest there is an appearance of bias in this case where (a) I am a full-time Judge, (b) I am no longer a member of the chambers of which Mr Paines is a member; and (c) I am more senior than Mr Paines and I was his pupil supervisor, not vice versa.
  2. I refuse the application to recuse myself on this ground.

THE SECOND GROUND

The judge also rejected the second ground of the application.

E. Ground (ii): The hearing on 1 July and the Claimant’s mother’s complaint
The Claimant’s submissions
    1. Paragraph 1 of the Claimant’s recusal application states:
“It is submitted that for the following reasons Mrs Justice Steyn should not continue to sit and preside over this matter (a) there is extant complaint made by the Claimant’s mother to three different sources and which includes the Ministry of Justice given the events that took place in court yesterday whereby the Claimant collapsed and, it is estimated that for about 5-10 minutes the learned judge continued to address the court and direct this to hearing the Respondent’s application to strike out before hearing various preliminary objections set out in the Claimant’s Skeleton argument and there were 8 of them and maintaining very strongly with no compassion and sensitivity that the Claimant had just collapsed in the middle of proceedings as the learned judge expressed no view or concern about the Claimant’s well being whilst presiding save for a belated apology yesterday as if an afterthought. The Claimant and other persons present on her side, are very concerned about this aspect and never in the history of proceedings taking place in court where a party to proceedings collapses and a judge behaves unconcerned, said nothing about the collapse whilst it happened before the very eyes of the court, did not take steps to get the Claimant any help whilst she collapsed on the floor and could no longer continue her case. It was an appalling and shameful sight putting it mildly.”
    1. It appears from this that the Claimant is alleging that there is an appearance of bias by reason of:
i) Her belief that I saw her collapse in court and was unconcerned for her welfare; and
ii) The fact that the Claimant’s mother has made a complaint.
Analysis
    1. The circumstances of which the fair-minded and informed observer would be aware are these:
i) In my 2 July judgment I have explained the procedural history, the preliminary applications which were made by the Claimant on 1 July and my decisions in respect of them, and the circumstances in which and reasons why I adjourned the hearing. I draw attention to some matters in this judgment, but it is necessary to refer to my earlier judgment for a full understanding of events.
ii) Prior to the hearing on 1 July 2020, there was no indication that the Claimant was suffering from ill-health. On the contrary, the Claimant applied on 29 June 2020 for the hearing on 1 July 2020 to proceed in person rather than as a remote hearing. I granted the Claimant’s application.
iii) At the hearing on 1 July 2020, the Claimant made submissions on her own behalf. She did not say she was feeling unwell.
iv) The 2 July judgment records:

“69. When I refused the Claimant’s application to grant Mr Ogilvy permission to make oral submissions on her behalf, the Claimant initially became agitated. She asked me to provide my reasons in writing, stating that she wished to appeal. I made clear that I would provide a written judgment and that she could seek to appeal if she wished.

70. Until this point in the hearing, the Claimant had behaved courteously and respectfully. However, her behaviour changed very suddenly and dramatically. She became extremely angry, shouting very loudly at me, as well as over me when I tried to speak. The Claimant also picked up files and threw them forcefully down onto the bench.

71. Two of the people accompanying the Claimant (who I understand to have been her mother and sister) went forward from the rows where they had been sitting, apparently to seek to calm the Claimant down. The Claimant then appeared to sit down under the bench so that she was no longer visible to me. At this point the Claimant’s mother began shouting and became very disruptive.

72. I said that I would rise for five minutes to give the Claimant and those accompanying her time to calm down, and that when I returned I would hear the Defendants’ Counsel’s submissions on the Defendants’ application, before giving the Claimant an opportunity to make submissions in response.

73. After I left court I was informed that the Claimant was lying down, and that Mr Ogilvy had called an ambulance for her. …”

v) I initially adjourned the hearing until 1.30. When I returned to court at 1.30, the Claimant was absent, as were those accompanying her. I informed the Defendants that I would adjourn for a short period to seek to ascertain whether the Claimant’s absence was due to ill-health or for some other reason.
vi) I asked my clerk to send an email to the Claimant (and to her McKenzie friend, in view of the possibility that the Claimant would not be in a position to respond). The email said: “The Judge was very sorry to hear that an ambulance had to be called for you, Ms Ameyaw, this morning.” And it sought information as to whether the Claimant would be returning to court or was unfit to do so.
vii) At about 2.15pm, in view of the Claimant’s continued absence and having received no further information, I adjourned the hearing until 3 July 2020.
viii) My clerk received an email from Mr Ogilvy at 4.49pm on 1 July 2020 in which he stated that the Claimant’s mother had informed him that “Ms Ameyaw following my 999 call has been admitted to Hospital and as of this time I have no clue what is her prognosis”.
ix) On 2 July 2020 I received (via my clerk) an email from the Claimant’s account, but which stated it was from the Claimant’s mother, attaching a copy of a letter from the Claimant’s GP. The GP’s letter states:

“I understand that she collapsed in court yesterday. She was assessed by the ambulance service at the scene who reported high blood pressure and pulse rate. She was transferred for assessment in the Accident and Emergency Department at St Thomas’s Hospital. The hospital report states that she felt her heart rate and breathing rate increasing and felt sweaty and dizzy and then her legs gave way and she collapsed. The symptoms then resolved and once she reached hospital the investigations and observations were normal. The hospital report gives a diagnosis of a vasovagal syncopal episode.”

x) The GP’s letter reported that on 2 July 2020 the Claimant reported various symptoms on the basis of which the GP said, “it seems she has a current viral illness”. I invited submissions as to whether the hearing on 3 July 2020 should be adjourned and, for the reasons given in my order dated 3 July 2020, I vacated that hearing.
    1. The Claimant contends that I saw her collapse and was unconcerned. It is not clear to me that the criticism is truly one of bias, rather than of callousness. But in any event the fair-minded and informed observer is not the Claimant. Such an observer would consider the range of possible explanations for what I did and said, in the circumstances. Bearing in mind the judicial oath, and that fairness and open-mindedness are integral aspects of judicial training, a fair-minded and informed observer would not suspect bias if there is a reasonable explanation which is consistent with entirely proper conduct. In this case, a fair-minded and informed observer would consider that a reasonable alternative explanation for the fact that I said nothing about the Claimant’s collapse before I left court is that I was not aware she had collapsed.
    2. In my judgement, a fair-minded and informed observer would not consider that there is anything in the way in which I dealt with the hearing on 1 July 2020 which gives to a real possibility of bias.
    3. Nor does the fact that the Claimant’s mother has made complaints give rise to an appearance of bias. It is not hard to understand why a mother who believes (even if mistakenly) that a judge has not cared that her daughter collapsed in court would be distressed and might wish to complain.
    4. In Dobbs v Tridos Bank NV [2005] EWCA Civ 468 Chadwick LJ observed at [7]:
“7. It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. 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.”
    1. It is clear that the mere fact that criticisms have been levelled at a judge – or complaints made – does not in and of itself give rise an appearance of bias.
F. Conclusion
  1. Considering the Claimant’s grounds separately and in the round, I am confident that the fair-minded and informed observer would apprehend no real danger of bias. This is not a case where there is “real ground for doubt” that should be resolved in favour of recusal. On the contrary, it is clear and obvious that there are no proper grounds for recusal. Accordingly, the Claimant’s application is dismissed.