Last Updated on December 9, 2020 by LawEuro
Neutral Citation Number: [2018] EWCA Civ 468
Case No: B2/2016/2559
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE FREELAND QC
Case number: 3QZ39784
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 14/03/2018
Before:
LORD JUSTICE FLAUX
and
LORD JUSTICE LEGGATT
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Between:
BUBBLES & WINE LIMITED
Appellant
– and –
RESHAT LUSHA
Respondent
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The Appellant appeared in person (represented by its director, Mr Laurent Faure)
Ms Hannah Glover (instructed by Fieldfisher LLP) for the Respondent
Hearing date: 22 February 2018
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Judgment
LORD JUSTICE LEGGATT:
1. The question on this appeal is whether a judge showed apparent bias by reason of a conversation held in private with one party’s counsel alone during a trial.
The proceedings
2. The appellant, Bubbles & Wine Limited (“B&W”), engaged the respondent, Mr Lusha, to carry out building works at its premises in Moxon Street, London, between November 2012 and April 2013. Mr Lusha submitted invoices for the work in a total amount of £52,805, of which £28,000 was paid by B&W but the rest was not. In October 2013 Mr Lusha brought a claim for the balance in the Central London Country Court. B&W disputed the claim and also made a counterclaim for (i) losses allegedly caused by delay in completing the work, (ii) the cost of remedying certain alleged defects and (iii) loss said to result from inability to reclaim VAT due to Mr Lusha not being registered for VAT.
3. The case was listed for trial on 19 February 2015 before Deputy District Judge Wallis (the “trial judge”). The evidence was heard on that day but there was insufficient time for closing submissions. By agreement, these were subsequently made in writing. The trial judge handed down a written judgment on 28 April 2015. He found the claim proved, with the exception of certain sums claimed for materials, parking and payment of the congestion charge amounting in total to £1,155.40, which were not supported by documentary evidence. He dismissed the counterclaim, holding in summary that: (i) Mr Lusha did not cause delay in opening the premises as alleged and B&W had in any case failed to prove that the alleged delay had caused them any financial loss; (ii) B&W had failed to prove that any of the work done was defective; and (iii) whether or not Mr Lusha should have been registered for VAT, B&W suffered no loss through inability to reclaim VAT since none was charged. In the result, judgment was given in favour of Mr Lusha for £23,649.60 plus interest.
4. B&W appealed against the decision to the circuit judge. Although other grounds were argued, the main ground of appeal was that the trial judge ought to have recused himself by reason of actual or apparent bias. The appeal was heard by His Honour Judge Freeland QC, who dismissed it for reasons given in a judgment dated 2 June 2016. Although permission to appeal was initially refused on paper, following an oral hearing B&W was given permission to pursue a further appeal to the Court of Appeal solely on the issue of bias. At the hearing of this appeal, Mr Faure, a director of B&W who has represented the company in this court as he did before the circuit judge, made it clear that no allegation of actual bias is maintained and that B&W’s case is put squarely on the ground of apparent bias.
The relevant circumstances
5. The circumstances relevant to the allegation of apparent bias are the subject of detailed findings made by the circuit judge and are clearly evidenced by a series of contemporaneous emails exchanged between the parties’ respective counsel and the trial judge, by the account of the relevant events given by the trial judge in his judgment, and by a witness statement made by Mr Rahul Varma, the barrister who represented Mr Lusha at the trial. The relevant circumstances may be summarised as follows.
6. In July 2014 the trial judge’s daughter did a mini-pupillage at the barristers’ chambers of which Mr Varma was, at that time, a member and on one day she accompanied Mr Varma to court. On the morning of the trial on 19 February 2015, when he saw the name of the judge before whom the case was listed, Mr Varma explained this fact to Mr Niraj Modha, the barrister who was representing B&W on a direct access basis. Mr Modha took instructions from his client, who raised no objection to Deputy District Judge Wallis hearing the case.
7. Although the case was only set down for a day, it was not until after 6pm on 19 February 2015 that the court finished hearing the evidence. There was then a discussion between counsel and the trial judge in which it was agreed that closing submissions would be made in writing. The timetable was left to be discussed between counsel, who also agreed to draw up a list of issues. As counsel were packing up to leave court, the trial judge asked Mr Varma to remain behind saying that he would like to speak to him about a personal matter. Mr Modha agreed to this and Mr Varma then retired with the trial judge to his room. They had a conversation in which the trial judge thanked Mr Varma and his chambers for their hospitality towards his daughter and they then spoke about the judge’s daughter for a few minutes. At the end of the conversation the trial judge asked Mr Varma if he knew or was off to join Mr Modha and, on being told that they knew each other from previous cases, the judge asked Mr Varma to pass on the following comments to Mr Modha insofar as it might help both counsel to compile a list of issues: (1) the counterclaim seemed weak; and (2) the claimant’s case had several evidential gaps. Nothing more was said and Mr Varma then left.
8. On his return to chambers, Mr Varma sent an email to Mr Modha timed at 18:51 on 19 February 2015, in which he passed on what the trial judge had said. In the email Mr Varma stressed that he had not invited any comment about the case, had made no submissions about it and was passing on no less detail than the judge had given him. He confirmed that they had otherwise spoken only about the judge’s daughter and her choice of degree.
9. Mr Modha replied at 19:06. He said that he would have preferred for the judge to either not say anything or to have expressed his views on the case when all were present, although Mr Modha said that he did not criticise Mr Varma in any way and confirmed that “in my view you properly notified me of the quite uncontroversial personal connection between you and the judge before the hearing even began”. Mr Modha also stated:
“As it happens, I do not think that the judge has said anything that might not have been reasonably anticipated by either of the parties following the evidence today. I think it probably does help to narrow down some issues…”
10. On the following day (20 February 2015) the trial judge himself sent an email to Mr Modha, copied to Mr Varma, in which he said:
“As you know, I spoke to Mr Varma after Court yesterday evening – the subject of our discussion was my daughter’s mini-pupillage at Lamb Chambers last summer in which he played a part. I did, however, take the opportunity also to mention an aspect of the case and wish you to be aware of this.
As I explained to him, I would have done so in your presence had Mr Faure not remained in the room, but as you both have a considerable number of commitments in the next fortnight in addition to the unexpected burden of having to produce written final submissions, I felt – very exceptionally, I add – it might be helpful to share my immediate reaction to one aspect of the case. I stress it is no more than that. It is that regardless of the questions of causation, remoteness, etc., it did seem to me that the counterclaim suffers from an absence of evidence.
You may, of course, disagree, and I am not expecting you now to comment. I emphasise that no decision has been reached by me about the point and I assure you I shall dispassionately consider all the contentions and evidence when I have the final submissions.”
11. Mr Modha was concerned that the trial judge’s account of his conversation with Mr Varma differed from that reported by Mr Varma in that it referred only to the counterclaim and made no mention of any evidential gaps in the claimant’s case. Accordingly, Mr Modha sent an email to the trial judge on 23 February 2015 expressing concern that it was not clear precisely what had been said about the case in the judge’s conversation with Mr Varma and seeking clarification. The trial judge replied stating that, before the hearing, he had never met or spoken to Mr Varma and reiterated that his purpose in talking to Mr Varma after court was only to talk about his daughter. He confirmed that his recollection of what he had said to Mr Varma about the case was as he had already stated.
12. The next day (24 February 2015) the trial judge sent another email to Mr Modha (copied, as before, to Mr Varma) which read as follows:
“I have been giving further thought to our recent exchange of messages. It is, of course, fundamental that the Court is, and objectively is seen to be, impartial. For my part, I do not consider this principle has been compromised. However, after considering what I am about to state it has felt it has been, I fear I shall have to recuse myself. It would be better in those circumstances, I feel, to grasp the nettle now and set in motion obtaining a new trial date.
I have explained why I thought it would be helpful for you to know my initial concern and this was conveyed to you both by me and, at my request, Mr Varma. Indeed, B&W have benefited from knowing this so it can be dealt with in submissions. It may assist you to know I had like concerns with aspects of Mr Lusha’s evidence. This would be seen from the list of points I would propose to send Mr Varma and you which, without in any way restricting what you would otherwise say, could (if wished) be dealt with in the submissions. It would, I think, demonstrate, if indeed that is necessary, that I am far from having made up my mind on either party’s claim.
I should be grateful for your and Mr Varma’s thoughts at your convenience.”
13. In his judgment on the first appeal, the circuit judge concluded that, in the fourth sentence of this email, the word “if” had been inadvertently omitted and that the sentence was intended to read:
“However, if after considering what I am about to state it has felt it has been, I fear I shall have to recuse myself.”
That inference seems to me incontrovertible. The trial judge had plainly not decided that he would have to recuse himself. Had that been his view, he would not have asked counsel for their thoughts on matters which, as the trial judge considered, demonstrated his impartiality.
14. Mr Varma replied to the email arguing that the position was quite innocuous and that there was no reason for the trial judge to consider recusing himself. Mr Modha replied to the email saying that he would need to take instructions as to how his client wished to proceed. Having done so, Mr Modha sent an email to the trial judge on 26 February 2015 conveying B&W’s request that the judge should recuse himself from hearing the case. The reason given was that:
“the private conversation between yourself and Mr Varma, which was well-intentioned, trespassed into comment on the ongoing case. This was not appropriate, given that the comment was adverse, not in open court, and in the presence of only one party’s legal representative.”
15. On 27 February 2015 the trial judge sent an email to both counsel stating that he would not recuse himself and would give his reasons when delivering judgment. He then set out some points on which he said that he would welcome comment in closing submissions.
16. When he gave judgment on 28 April 2015, after dealing with the claim and counterclaim the trial judge gave an account of the circumstances which had given rise to the request that he should recuse himself and explained his reasons for declining to do so. He gave the following explanation of why he made comments on the case in his private conversation with Mr Varma:
“Our conversation was entirely social, save for this; I was concerned that Mr Modha should be made aware, as quickly as possible given his professional commitments, of my concern about the evidential weaknesses. I knew I would not be able to communicate with him until late that night. In an attempt to be helpful in preparing the closing submissions, I told Mr Varma that my initial view without deciding was that the counterclaims seemed weak and that there were also evidential gaps in Mr Lusha’s case. I asked him to pass this on to Mr Modha urgently, which he agreed to do. I recall I said I would do the same myself the following morning, which in fact I did. I did not enlarge on what I had said or ask Mr Varma to comment, and he did not do so. It took no more than a few seconds.”
The trial judge rejected any suggestion that any bias, whether actual or apparent, was manifested by or could be implied from his remarks. He expressed the view that his remarks were no more than repetition of what would already have been apparent to counsel. His explanation of why he had not made the comments in open court at the end of the hearing was that Mr Faure had been present in court and, “this is the irony of ironies, I did not wish him to conclude I had already made up my mind, as indeed I had not”. He accepted that, in retrospect, “it would have been better to have taken the risk of possibly upsetting Mr Faure”. The trial judge further stated that, while he appreciated that the consequences of a recusal could not themselves determine whether one should take place, the overriding objective and proportionality also had to be borne in mind and the cost of a rehearing would be wholly disproportionate. He also thought that, as the evidence had already been rehearsed, it would be extremely difficult, if not impossible, for a fair trial to take place. He concluded:
“There must be finality of resolving disputes and in this regard I am, I trust not immodestly, satisfied that my substantive decision shows that the issues have been fully explored and properly decided and the result is not susceptible to challenge.”
The law on apparent bias
17. The legal test for apparent bias is very well established. Mr Faure reminded us of the famous statements of Lord Hewart CJ in R v Sussex Justices ex parte McCarthy [1924] 1 KB 256 at 259 that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” and that “[n]othing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” These principles remain as salutary and important as ever, but the way in which they are to be applied has been made more precise by the modern authorities. These establish that the test for apparent bias involves a two stage process. 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 that the judge was biased: see Porter v Magill [2001] UKHL 67; [2002] 2 AC 357, paras 102-103. Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case: see Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, para 28; Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117; [2008] 1 WLR 2528, para 53.
18. Further points distilled from the case law by Sir Terence Etherton in Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515; [2014] 1 WLR 1943, at para 35, are the following:
(1) The fair-minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent: Lawal v Northern Spirit Ltd [2003] UKHL 35; [2003] ICR 856, para 14 (Lord Steyn).
(2) The facts and context are critical, with each case turning on “an intense focus on the essential facts of the case”: Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416, para 2 (Lord Hope).
(3) If the test of apparent bias is satisfied, the judge is automatically disqualified from hearing the case and considerations of inconvenience, cost and delay are irrelevant: Man O’ War Station Ltd v Auckland City Council (formerly Waiheke County Council) [2002] UKPC 28, para 11 (Lord Steyn).
19. In Helow v Secretary of State for the Home Department Lord Hope observed that the fair-minded and informed observer is not to be confused with the person raising the complaint of apparent bias and that the test ensures that there is this measure of detachment: [2008] UKHL 62; [2008] 1 WLR 2416, para 2; and see also Almazeedi v Penner [2018] UKPC 3, para 20. In the Resolution Chemicals case Sir Terence Etherton also pointed out that, if the legal test is not satisfied, then the objection to the judge must fail, even if that leaves the applicant dissatisfied and bearing a sense that justice will not or may not be done: [2013] EWCA Civ 1515; [2014] 1 WLR 1943, para 40.
The appellant’s case
20. Mr Faure, who presented B&W’s case on this appeal with admirable moderation, submitted that, in circumstances where the trial judge had expressed his views on the case to Mr Lusha’s counsel during an unrecorded private conversation without B&W’s counsel being present, a fair-minded and informed observer would conclude that there was a real possibility that the judge was not impartial. Mr Faure also emphasised that in the emails which the trial judge himself sent to Mr Modha on 20 and 23 February 2015 (referred to at paragraphs 10 and 11 above) the only view which the trial judge expressed was that the counterclaim suffered from an absence of evidence and he made no mention of any concerns about any aspects of Mr Lusha’s claim. Mr Faure submitted that this shows that the trial judge was in reality only concerned by the weakness of the counterclaim and had pre-judged the case.
21. Mr Faure also reminded us of the observation of Lord Steyn in Lawal v Northern Spirit Ltd [2003] UKHL 35; [2003] ICR 856, para 22, quoted in Watts v Watts [2015] EWCA Civ 1297, para 14, that:
“What the public was content to accept many years ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago.”
22. Ms Glover, who appeared for Mr Lusha, was realistic in not attempting to defend aspects of the trial judge’s conduct and particularly the manner in which the judge chose to communicate his thoughts about the weaknesses in the evidence. But she marshalled very clearly her arguments for maintaining that the fair-minded and informed observer, having considered the facts, would not conclude that there was a real possibility that the trial judge was biased.
The trial judge’s conduct
23. Before I come to the question of whether the test of apparent bias is satisfied on the facts of this case, I think it appropriate to make some comments on how the situation has arisen in which, at what will inevitably have involved considerable expense and inconvenience to the parties, this question has had to be decided by the Court of Appeal. It should be obvious that, in their handling of cases, judges need to be scrupulous not merely to refrain from conduct which will result in their recusal but to avoid creating a situation in which concerns about their impartiality can reasonably be raised at all. They need to bear in mind not just the hypothetical fair-minded observer who has ascertained all the relevant facts but actual litigants who cannot be blamed for lacking objectivity and who will only know the relevant facts if the judge behaves in a transparent way. In this case, the circuit judge, while rejecting the complaint of apparent bias, felt bound to record that what the trial judge did was “far from ideal” and “should be discouraged”. I regret to say that this was, in my view, far too generous an assessment.
24. The first mistake which the trial judge made was to request a private conversation with counsel for one of the parties in the absence of the other while the case was continuing. It is difficult to think of circumstances in which this would be an appropriate thing to do. It risks fostering an impression of favouritism towards one party’s advocate. It also encourages suspicion in the other party (even if the suspicion is in fact unfounded) by leaving the other party in the dark about exactly what has been or might have been said in the absence of its own representative. Certainly, there was no sufficient reason in the present case for the trial judge to solicit a private conversation with Mr Varma. To the contrary, in doing so he gave prominence to a connection (through his daughter’s mini-pupillage in Mr Varma’s chambers) which had not previously been any cause any concern. For the trial judge to go out of his way, during the trial, “personally to thank Mr Varma for his hospitality towards [his] daughter” was capable of suggesting that he felt a sense of obligation towards Mr Varma. Although judges can generally be counted on not to let their attitude towards a party’s advocate affect their perception of the case which the advocate is arguing on behalf of his or her client, they ought to keep a proper distance when they are engaged in a trial.
25. The second and worse error which the trial judge made was not to confine his private conversation with the claimant’s counsel to personal matters but to talk about the case and, more than that, to express views about the merits of the parties’ respective cases. It is an important fact that the judge specifically requested that his comments should be passed on to B&W’s counsel, and I will return to that fact when addressing the question of whether he showed apparent bias. But it ought to be obvious that it is wrong for a judge to express views about the merits of the case to one party’s representative in the absence of the other, particularly when no recording is being made of what is said. Even where, as here, the comments were intended to be passed on, the other party is put at the disadvantage of not having actually heard what was said and being reliant on a second-hand account. It was all the more unfortunate that the trial judge in this case expressed opinions on the merits to counsel for Mr Lusha in the absence of B&W’s counsel when the main comment that he made was to express an unfavourable view of the strength of B&W’s case.
26. I am distinctly unimpressed by the explanation given by the trial judge in his judgment to seek to justify this conduct (quoted at paragraph 16 above). When the conversation took place, the trial had been adjourned for closing submissions and no timetable for these had yet been set. It had further been agreed that, before preparing their submissions, the two counsel would liaise with each other to compile a list of issues. It is very difficult to see how in these circumstances the judge’s concern about the perceived evidential weakness of the counterclaim was a matter of which Mr Modha needed to be made aware “as quickly as possible” (whatever Mr Modha’s forthcoming professional commitments). Furthermore, the suggestion that the matter was of such urgency that it needed to be passed on immediately and could not wait until the judge was able to communicate with Mr Modha himself late that night or the following morning is – to put it bluntly – absurd. The supposed urgency of communication is also at odds with the further excuse proffered by the judge that his remarks were “merely repetition and superfluous”.
27. Equally unimpressive is the explanation given for why, if the trial judge thought it helpful to express some preliminary views, he did not do so in court at the end of the hearing. As mentioned, the judge said in his judgment that he did not express his concerns about evidential weaknesses when Mr Faure was present because he did not wish Mr Faure to conclude that he had already made up his mind. (The judge described this as “the irony of ironies”.) This was, however, a misguided approach. If a judge has concerns which he or she thinks it desirable to express in order to give counsel an opportunity to deal with them, then the parties, and not just their lawyers, are entitled to know those concerns. There is no space in a trial for communications to take place between the judge and counsel which form part of the decision-making process but of which the parties themselves are not told. Thus, as Mr Modha recognised when he received Mr Varma’s email on the evening of 19 February 2015, Mr Modha’s duty to his client required him to pass on to B&W Mr Varma’s message about what the trial judge had said. If the judge thought that the risk of his comments being misinterpreted outweighed the benefits of making them, then he should not have made the comments at all. But if he thought it right to express his view about the evidential weakness of B&W’s case, the judge could not sensibly have thought that the risk of misinterpretation would be less if Mr Faure learnt that the views had been expressed at the end of a private conversation with the other side’s counsel than if Mr Faure heard the views expressed himself in open court. If there is any irony in what occurred, it is one which the trial judge brought upon himself.
28. The errors made did not end on 19 February 2015. The trial judge sent an email to Mr Modha the next day, as he had said that he would do. However, in his email the judge conveyed only his impression that the counterclaim suffered from an absence of evidence and did not mention the comment that he had also made to Mr Varma the previous evening that Mr Lusha’s case had several evidential gaps. The judge never subsequently explained why he omitted to mention this further comment. There can be no doubt that the comment was indeed made to Mr Varma, as immediately after the conversation Mr Varma reported it to Mr Modha (as the judge had asked him to do). Moreover, the judge did later tell Mr Modha that he had concerns with aspects of Mr Lusha’s evidence in his email dated 24 February 2015 (quoted at paragraph 12 above). That email was sent at a time when the judge had not seen the email sent by Mr Varma on 19 February 2015 and did not know what report Mr Varma had given of their conversation. It is possible that, as Ms Glover suggested, in his email sent on 20 February 2015 the judge was concentrating on the counterclaim because he thought that this was what was relevant from the point of view of Mr Modha and his client. It was nevertheless unhelpful that he gave only a partial account of what he had said to Mr Varma about the case. It was even more unhelpful that, when specifically asked by Mr Modha to clarify precisely what was said because of concern that the judge’s account differed from Mr Varma’s, the judge did not then mention his comment about Mr Lusha’s evidence and simply replied that his recollection of what he had said about the case was as he had already stated. Mr Modha and Mr Faure could hardly be blamed in these circumstances for apprehending that they had not been given a full account of the relevant conversation.
29. The trial judge compounded his self-created difficulties by the email that he sent on 24 February 2015. Allowing for the evident typographical error, the message conveyed by that email was that, even though the trial judge did not believe that his impartiality had been compromised, if after consideration of the points made in the email it was felt that it had been, he would have to recuse himself. The trial judge thereby gave the impression that, if B&W was not satisfied by his assurances, the judge would withdraw from the case and there would be a new trial. However, when Mr Modha responded that B&W did indeed believe that “the fundamental principle of impartiality has been compromised” and requested that the trial judge recuse himself, the judge refused. It is true that a judge is not required to recuse himself just because a party believes that he is not impartial if the party’s objection is not valid. But, for that very reason, the trial judge should never have encouraged B&W to think that he would recuse himself if they felt that his impartiality had been compromised regardless of what he himself believed. It was bound to create a sense of grievance to open the door for a re-trial in that way, only for it then to be shut again in the litigant’s face.
30. I have already criticised the attempts made by the trial judge in his judgment to justify his conversation with Mr Varma. In addition, although he recognised that the consequences of a recusal could not be decisive, the trial judge was wrong to suggest that considerations of proportionality had also to be borne in mind. His suggestion that it would be extremely difficult, if not impossible, for a fair trial to take place if the case had to be re-heard does not bear scrutiny. Finally, the trial judge’s expression of satisfaction (quoted at paragraph 17 above) that his judgment showed that the issues had been properly decided and the result was not susceptible to challenge was not merely complacent but displayed a complete lack of sensitivity to the importance of ensuring procedural as well as substantive fairness.
Was there apparent bias?
31. I have articulated these criticisms because it is essential to the administration of justice that errors in the handling of cases are exposed and lessons learnt. It is, however, a different question whether the fair-minded observer, informed of the facts set out at paragraphs 5 to 17 above, would conclude that the conduct of the trial judge was not only misguided but disclosed a real possibility that the judge was biased in favour of Mr Lusha or against B&W. I am satisfied that the fair-minded and informed observer would not reach that conclusion, for the following reasons.
32. First, the mini-pupillage undertaken by the trial judge’s daughter could not sensibly have been thought to give rise to any risk of bias and B&W quite properly made no objection to the judge hearing the case when Mr Varma disclosed that fact to his opponent before the hearing. The fact that the judge, while the trial was continuing, requested a private conversation with Mr Varma in which he thanked Mr Varma and his chambers for their hospitality towards his daughter was tactless for the reasons I have indicated. But the conversation took place with the knowledge and consent of B&W’s counsel and no fair-minded observer would have drawn from the fact that judge asked to speak and did speak to Mr Varma about his daughter any inference that the judge would decide the case other than impartially and on basis of his assessment of the merits.
33. Second, this is not a case in which there is any material uncertainty about the relevant facts. There may be cases in which, even after investigation, it is impossible to ascertain with confidence exactly what was discussed in a conversation between the judge and one party’s representative to which no one else was privy. That information gap could itself be such as to lead a fair-minded observer to conclude that there was a possibility which could not be discounted that the judge had demonstrated bias. But this is not such a case. As mentioned earlier, the contemporaneous emails, the judgment and Mr Varma’s evidence leave no doubt about what was said – and the limits of what was said – when the judge spoke privately to Mr Varma.
34. Third, it was perfectly proper for the judge to express preliminary views about the strength or weakness of each party’s case during the proceedings and no criticism could reasonably have been made of him if his comments had been made in open court. There is nothing wrong with a judge indicating provisional views, and advocates are generally grateful for such indications as it gives them an opportunity to correct any misconception which the judge may have and to concentrate in their submissions on those points which appear to be influencing the judge’s thinking. The expression of such views could only be thought to indicate bias if they are stated in terms which suggest that the judge has already reached a final decision before hearing all the evidence and argument. That was not the case here. The fact that the views expressed by the trial judge were themselves innocuous is further confirmed by the reaction of B&W’s counsel to Mr Varma’s email, quoted at paragraph 9 above.
35. Fourth, the fact that the trial judge expressed such views, not in court, but at the end of his private conversation with Mr Varma was misguided, again for reasons that I have given. Nor did the judge do himself any favours by advancing an explanation for this conduct in his judgment which was palpably bad. It is, however, of critical importance that the judge, in making the comments that he did (i) made it clear that his purpose was to assist both parties in preparing their closing submissions, and (ii) specifically asked Mr Varma to pass on the comments to his opponent (which Mr Varma did). This demonstrates that the trial judge was not giving or seeking to give one party a privileged insight into his thinking which was not being afforded to the other. In these circumstances a fair-minded observer would conclude that the communication of the comments to one party’s representative in the absence of the other, though inept, did not suggest that the trial judge had formed a predisposition to decide the case in favour of Mr Lusha or against B&W for any reason other than the strength of their respective cases.
36. Fifth, it is also of the greatest importance that, as Mr Varma stressed in the email that he sent to Mr Modha following the conversation, Mr Varma made no submissions to the trial judge about the case. Nor did the judge invite him to do so. Even apart from the question of bias, hearing submissions on behalf of one party to which no one representing the interests of the other party was privy would have been a breach of the basic duty of a court to follow a procedure which is fair as between the parties. However, no such breach occurred in this case.
37. Sixth, the fact that the trial judge himself sent an email to B&W’s counsel the next day conveying to him directly the provisional view about the counterclaim which he had already communicated via Mr Varma confirms that the judge was not intending to give – and indeed was seeking to ensure that he did not give – one party assistance which the other was denied. I have criticised the judge for failing to mention in his email the further comment about Mr Lusha’s case that he had asked Mr Varma to pass on. But I do not accept the argument made by Mr Faure that this omission suggests that the trial judge had already reached a final decision adverse to B&W. No such inference could reasonably have been drawn even if the judge had expressed no concerns about any aspects of the claimant’s case to Mr Varma. As it is, he had in fact done so and there is no reason to doubt that the concerns were real – not least as the judge ultimately found that there was insufficient evidence to prove some elements of the claim made by Mr Lusha. Nor is there any reason to think that the trial judge was deliberately seeking to withhold his preliminary view on this point from B&W, since (i) he had already asked Mr Varma to pass on his concern about the claimant’s case (which Mr Varma had done) and (ii) the judge did himself communicate his concern directly to B&W’s counsel in his later email dated 24 February 2015.
38. I have also criticised the judge for creating an impression in his email sent on 24 February 2015 that he would recuse himself if B&W felt that his impartiality had been compromised, even if he did not himself consider that it had been. Again, however, the criticism is not one which supports a complaint of apparent bias. The judge was quite right ultimately to take the decision about whether to recuse himself on the basis of his own assessment of whether valid grounds for doing so had been shown and not on the basis that B&W felt that his impartiality had been compromised. His error was to suggest that he would do otherwise. That error showed lack of due forethought but does not suggest a possibility that he was biased.
39. Finally, I have criticised some of the reasons which the trial judge gave in his judgment for his decision not to recuse himself, including his suggestion that it was relevant to consider considerations of proportionality and cost in that regard. The judge’s conclusion that it would be wrong to recuse himself was, in my view, nevertheless correct, and nothing said in the judgment itself gives rise to any inference that he lacked impartiality.
40. The facts of the present case are materially different from those of Gill v Humanware Europe Ltd (unreported 27 February 2009), on which Mr Faure placed reliance. In that case, an employment judge had two private conversations outside court with counsel for the respondent at which the claimant, who was acting in person, was not present. In the first conversation counsel and the judge discussed the timetable for the hearing and the order of witnesses and, in the course of the conversation, the judge commented that the evidence of one particular witness was central. In the second conversation counsel approached the judge privately to “provide an explanation” for some part of the evidence given by this witness. The judge could not subsequently recall, and it could not be established, exactly what was said except that it related to some “very personal issues”, either in relation to the claimant or the witness. Neither conversation was passed on to the claimant.
41. On an appeal on the ground of apparent bias, the Employment Appeal Tribunal held that the test of apparent bias was satisfied on the basis that the employment judge had received submissions from and made comments to the representative of one party which were not revealed to the other party. That is very different from the present case where, as I have explained, no submissions were made privately by Mr Varma and where the trial judge’s comments were intended to be, and were, communicated to B&W.
Conclusion
42. Applying the established legal test of apparent bias, I am satisfied that the fair-minded and informed observer, having considered all the relevant facts, would conclude that the conduct of the judge in this case, wrong-headed as it was, did not indicate any real possibility that he was biased. I would accordingly dismiss the appeal.
Lord Justice Flaux:
43. I agree.
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