Jones v DAS Legal Expenses Insurance Co. Ltd. & Ors.

This is the judgment of the court.

Mr Philip Jones, the appellant, was employed as a senior claims handler by the first respondent, DAS Legal Expenses Insurance Co. Ltd. He complained to the Employment Tribunal in Bristol that in conducting an appraisal of his work, and generally, his line manager, Nicola Gale, the second respondent, and her superior, Mary Barnes, the third respondent, discriminated against him on the grounds of his sex. He complained that the company was guilty of sex discrimination in their selection of those who were given overtime work in the company’s legal advice service. His third complaint was of victimisation by the general manager, Charles Wright, as a result of the instigation of the proceedings before the tribunal.

The matter was listed for four days to start on 12^th December 2001. A full-time chairman, Mrs O.R. Harper presided with the usual two wing members. Mr Jones appeared in person. He had been admitted as a solicitor in November 1993 but had limited post qualification experience, virtually no advocacy experience and he has never held a practising certificate. The respondents were represented by counsel, Mr Pirani, who appears before us.

The case started at about 10.40 a.m. After a few preliminary observations the chairman, Mrs Harper, made an announcement which gives rise to this appeal. Precisely what she said is a matter of dispute. The appellant’s account of it to the best of his recollection is that Mrs Harper announced to the parties that her husband was a barrister in chambers that undertook work for DAS and she asked Mr Jones if, bearing that in mind, he was content that she should hear the matter. She told him she did not know the individual respondents. Mr Jones was taken aback as we shall later explain but whatever the pressure, he agreed to the matter continuing and after a short adjournment the hearing did indeed proceed.

Moving forward to the point when the evidence and submissions had concluded, the tribunal announced that Mr Jones was not successful and that his applications were to be dismissed. Before the written reasons were promulgated, Mr Jones wrote to the regional chairman complaining that Mrs Harper had failed to disclose that her husband did work for DAS and that she was biased. The response to that complaint gave Mrs Harper the first opportunity to explain herself. The regional chairman wrote:-

“I understand that at the outset of the hearing, Mrs Harper informed you that her husband was a barrister and that the chambers undertook work for DAS. Indeed, her recollection is that she said he has appeared for DAS, but that she had no connection with the company or any knowledge of it. She invited comment from you. She noted that you did not object to her continuing to chair the tribunal.”

Once the extended reasons had been given in writing or sent to the parties on 28^th March 2002, Mr Jones sought a review of the decision. In rejecting that application Mrs Harper stated:-

“The interests of justice do not require a review as at the commencement of the hearing the Chairman advised the parties that her husband, a barrister, on occasions was instructed by the respondent. The Chairman at that time did not know of any individual cases on which her husband was instructed, nor of any financial advantage as to the outcome of any such cases. Having raised the matter with the parties, the Chairman asked whether the applicant (who is a qualified solicitor) had any objection to her sitting on the case. The applicant said he had no objection. The Chairman considered that the applicant had therefore waived any objection to the Chairman sitting on the case.”

A third version of what happened was given by Ms Donald, a paralegal employee of the respondent’s solicitors, who took the following note:-

“Chairman – Poss. conflict because Mr Harper occasionally instructed by Rs – do you object? I don’t consider it a problem.

PJ – No objection.”

To resume the narrative of the hearing, Mr Jones gave evidence and was cross-examined. In addition to evidence from the three individual respondents, other senior managers gave evidence and made statements. After the short adjournment on the second day, there was another unusual event: the regional chairman announced that for unexpected and unavoidable personal reasons of some sort Mrs Harper was unable to continue the hearing that afternoon or for the next following two days for which it was listed. The matter had to be adjourned to February and the parties were informed that they might even have to start all over again before another tribunal. In the event the hearing resumed before the same tribunal on 25^th February and ended on 27^th February with the tribunal announcing their decision adverse to Mr Jones. There followed the short exchange of correspondence to which I have referred. The extended reasons in writing were promulgated on 28^th March 2002. It is unnecessary to give any detail of the reasons for that decision. There has been no challenge to the directions of law given by Mrs Harper. The case turned upon its facts and the decision was unanimous. We have, however, read it carefully and it reads like any other decision of an Employment Tribunal as they are being handed down day in and day out. That, however, is not the question which arises in this appeal.

Disappointed by the result, Mr Jones began to investigate what kind of connection there was between Mr Harper and his employers, DAS.

DAS is probably the market leader in providing legal expenses insurance. One of its principal activities is the handling of employment claims and there is a large in-house litigation unit dedicated to that work. Barristers and solicitors have apparently tendered for work in this connection. Mr Harper’s chambers in Bristol is one of only five sets which have been appointed to the panel throughout England and Wales, in their case covering Bristol and the West Country, South Wales and extending up into the Midlands. Individual barristers also appear to be accredited and one of them is Mr Harper. Their appointment dated from May 2000, about eighteen months before the matter came before the Employment Tribunal. The in-house litigation department is able to instruct counsel direct and Mr Jones has conducted a “random search” which has established that Mr Harper was directly instructed on about eight occasions between March 2001 and November 2001, shortly before the hearing, and was paid fees totalling a little over £3,000. Since the hearing, Mr Jones’ information is that he has continued to be instructed, certainly up to June 2002, receiving nearly £2,500 from DAS. Mr Jones points out that he has no access to information showing how much was paid to Mr Harper by solicitors on the panel and invites us to infer that further income has been enjoyed from this source. Importantly, Mr Jones points out that the appointments to the panel are in the gift of the managers some of whom were respondents, and others of whom gave evidence on behalf of the company in the hearing in the Employment Tribunal. None of this information has been challenged by DAS.

Having had his application for a review rejected partly on the merits but partly also because the chairman, Mrs Harper, took the view that Mr Jones had waived any objection to her sitting, Mr Jones appealed to the Employment Appeal Tribunal. The decision of the Appeal Tribunal was sent to the parties on 19^th December 2002. His appeal on the ground that the decision was perverse was rightly rejected. With regard to the allegation of bias His Hon Judge Peter Clark dealt first with the dispute as to what had happened at the opening of the hearing and concluded:-

“… We think it overwhelmingly probable that Ms Donald’s [the paralegal’s] note is accurate; it having been contemporaneously recorded at the time the chairman raised the point and we are satisfied that she disclosed the fact that her husband was himself occasionally instructed by the respondent.”

The tribunal then asked whether that was a ground for setting aside the tribunal’s decision and held:-

“In our judgment it is not. Even if one were to accept, that applying the Court of Appeal’s guidance in Locabail (U.K.) Ltd. v Bayfield Properties Ltd. [2000] IRLR 98 paragraph 10, this was a case where the chairman’s interest derived from her spouse such that there was a link close enough and direct enough to render the interest of her husband for all practical purposes indistinguishable from her own, we are satisfied that the potential conflict was adequately raised by the Chairman at the outset of the proceedings and that Mr Jones was given all the information that he required to decide whether or not to waive his right to object to her continuing sitting in this case. His waiver was clear and unequivocal. The hearing took place over two days in December and was then adjourned until February 2002; no objection was taken by Mr Jones until after the result was communicated to him. In these circumstances we reject the first ground of appeal.”

He appeals to us with permission of Judge L.J. In this court Mr Jones, who, if we may be permitted to say so, argued his case as well as any experienced advocate could have done, directs our attention to Locabail which is reported at [2000] Q.B. 451. He divides bias into three categories, first, actual bias which he has never asserted and does not assert in the appeal, secondly, apparent bias and thirdly presumed bias. He rests his appeal on this third category, presumed bias.

Mr Jones succinctly draws our attention to the following passages in Locabail:-

“4.

There is, however, one situation in which, on proof of the requisite facts, the existence of bias is effectively presumed, and in such cases it gives rise to what has been called automatic disqualification. That is where the judge is shown to have an interest in the outcome of the case which he is to decide or has decided. …

7.

The basic rule is not in doubt. Nor is the rationale of the rule: that if a judge has a personal interest in the outcome of an issue which he is to resolve, he is improperly acting as a judge in his own cause; and that such a proceeding would, without more, undermine public confidence in the integrity of the administration of justice …

8.

In the context of automatic disqualification the question is not whether the judge has some link with a party involved in the cause before the judge but whether the outcome of that cause could, realistically, affect the judge’s interest. …

10.

… any doubt should be resolved in favour of disqualification. In any case where the judge’s interest is said to derive from the interest of a spouse, partner or other family member the link must be so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge himself.”

Mr Jones submits that it must be assumed that husband and wife in this instance are members of the same household and that, therefore, there must be such a closeness of economic interest as to bring the rule into play. Husband and wife should not be treated differently in this respect from partners in, say, a firm of solicitors where a client of one partner is before a tribunal presided over by another partner. Mr Pirani, on the other hand, submits that presumed bias is established only if the interest is direct and here Mrs Harper had no direct interest in the earnings of her barrister husband. Here the interest of the husband was not for all practical purposes indistinguishable from the judge herself; nor, for that matter, would his earnings be directly affected by the outcome of the case.

It is instructive to consider the development of this rule. It was applied famously to the Lord Chancellor, Lord Cottenham, who overlooked the fact that he had a shareholding in the Canal Company which was a party to the appeal to his Lordship’s House in Dimes v Proprietors of Great Junction Canal (1852) 3 H.L. Cas. 759. Lord Campbell declared:-

“No-one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest.”

In Reg. v Bow Street Magistrate, Ex p. Pinochet (No. 2) [2000] 1 A.C. 119 the House of Lords developed the rule. Lord Browne-Wilkinson said at p.132/3:-

“The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be a judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

In my judgment, this case falls within the first category of case, viz. where a judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure.”

That case is interesting for its development of what constitutes the relevant interest. Lord Browne-Wilkinson said at page 133/4:-

“The importance of this point in the present case is this. Neither A.I., nor A.I.C.L., has any financial interest in the outcome of this litigation. We are here confronted, as was Lord Hoffmann, with a novel situation where the outcome of the litigation did not lead to financial benefit to anyone. The interest of A.I. in the litigation was not financial, it was in its interest in achieving the trial and possible conviction of Senator Pinochet for crimes against humanity.”

What is important, in our judgment, is the fact that the judge must have the relevant interest in the party whose cause is before him. In the matter before us Mr and Mrs Harper had no interest at all in DAS. Mrs Harper herself had nothing whatsoever to do with this insurance company. Her husband may or may not have stood to gain from a favourable decision. But the interest he may have had and the indirect interest Mrs Harper may have had was in their own well-being, not in the fortune of the party to the cause before the tribunal. This case in our judgment falls into the second category identified by Lord Browne-Wilkinson, being one where the judge is not normally himself benefiting, but possibly providing a benefit for another by failing to be impartial. On the ground of appeal being advanced to us, this appeal fails.

It would, however, be unsatisfactory to leave matters there. Every complaint of impartiality is to be treated very seriously. As we indicated in the course of argument, this case may perhaps more aptly be treated as one of apparent bias (that is, the second of Lord Browne-Wilkinson’s two categories) and Mr Pirani did not take any serious objection to our considering it on that basis.

The test for apparent bias is now established by Porter v Magill [2002] 2 A.C. 359. Lord Hope of Craighead reviewed the domestic authorities, the impact upon them of the Strasbourg jurisprudence on Article 6 of the Convention of Human Rights which applies to a case of this kind and thus in particular In Re Medicaments and Related Classes of Goods (No. 2) [2001] 1 W.L.R. 700 where the judgment of the Court of Appeal was this:-

“85.

When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment to the test of R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. 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.”

Lord Hope having cited that passage then said at p.494:-

“I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg Court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to “a real danger”. Those words no longer serve a useful purpose here and they are not used in the jurisprudence of the Strasbourg Court. The question is whether a fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased.”

In the application of that test the first task of the court is to ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. The Court of Appeal elaborated upon that in Medicaments in paragraph 86 and said:-

“The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of a fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced.”

Medicaments should not be understood as absolving the court of the need to ascertain what explanation was given, as opposed to ascertaining the accuracy of that explanation. What was actually said bears also on the question of waiver. Here the Employment Appeal Tribunal found as a fact that Mrs Harper disclosed the fact that her husband was himself occasionally instructed by the respondents. That is a finding of fact from which no appeal to this court can lie: this court is concerned only with appeals on a question of law. For what it is worth, support for their finding comes from the letter from the regional chairman in response to Mr Jones’s assertion that all the chairman explained was that her husband was in a set of chambers which undertook work for the respondent company and that “this conveyed the impression that other barristers in the chairman’s husband’s chambers undertook such work but that he did not”. Her response was that she said both things. That letter was not placed before the Appeal Tribunal and it does give credence to the finding that she did indicate that her husband had appeared for DAS.

Here there is no dispute about the further facts placed before the court. Mr Harper had done a certain amount of work for DAS. It is a fair inference to draw from Mr Jones’s affidavit that he probably did other work on instructions from panel solicitors. Managers of the respondent company who were either respondents themselves or witnesses called on behalf of the company had it in their gift to appoint sets of chambers, individual barristers and firms of solicitors to their panels, and, importantly, to remove them and thus remove a source of remuneration. Precisely how much of that was known to the chairman is impossible for us to ascertain. In accordance with Medicaments it is unnecessary for us to resolve that. Since any doubt should be resolved in favour of disqualification per Locabail, giving that a wide and generous interpretation, the fair-minded observer would proceed upon a basis that Mrs Harper knew in general how the system operated and that her husband was to some extent a beneficiary of it even if she did not know all of the detail. The crucial question is then whether or not a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased?

Before one can answer that question, one must know what qualities this hypothetical fair-minded and informed observer possesses. In Taylor v Lawrence [2003] Q.B. 528 the judgment of five members of the Court of Appeal including Lord Woolf C.J. and Lord Phillips of Worth Matravers M.R. was, as set out in paragraph 61, that:-

“The informed observer can be expected to be aware of the legal tradition and culture of this jurisdiction.”

Nevertheless, as Lord Bingham pointed out in Lawal v Northern Spirit Ltd. [2003] UKHL35 that does not mean that:-

“he [this hypothetical observer] may not be wholly uncritical of this culture. It is more likely that in the words of Kirby J. he would be “neither complacent nor unduly sensitive or suspicious.”

What conclusion would the observer reach? He would remind himself, per Lord Nolan, p.139 in Pinochet, that:-

“… in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality.”

He would also remind himself of the imperative need to maintain the absolute impartiality of the judiciary and, as Lord Buckmaster put it in Sellar v Highland Railway Co. 1919 S.C. 19:-

“The importance of preserving the administration of justice from anything which can even by remote imagination infer a bias or interest in the judge upon whom falls the solemn duty of interpreting the law is so grave that any small inconvenience experienced in its preservation may be cheerfully endured.”

In our judgment the following facts will materially influence the decision:-

In our judgment the fair-minded and informed observer would not conclude that the chairman herself, still less the tribunal as the decision-making body, was biased. This ground of appeal, if advanced, must also fail.

That leaves the question of waiver. There was some discussion in the course of argument about whether a party could waive presumed bias. It seems to us, upon reflection, that although proof of the substantial direct financial involvement of the judge would give rise to an irrebuttable presumption of bias, the fact that it arises automatically does not prevent a waiver, difficult as it is to understand why a party would surrender himself to the biased court in such circumstances.

The rule as stated in Pinochet at p.137 is this:-

“… All three concepts – election, waiver and abuse of process – require that the person said to have elected etc. has acted freely and in full knowledge of the facts.”

Thus the essential requirements for waiver are, as stated in paragraph 15 of Locabail:-

“… any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not.”

That is the rule and a subsequent passage in paragraph 26 of the judgment must be read subject to those fundamental principles of waiver. The passage in paragraph 26 reads:-

“If, appropriate disclosure having been made by the judge, a party raises no objection to the judge hearing or continuing to hear a case, that party cannot thereafter complain of the matter disclosed as giving rise to a real danger of bias. It would be unjust to the other party and undermine both the reality and appearance of justice to allow him to do so.” (Emphasis added by us).

We emphasise the appropriateness of the disclosure because that links back to the general rule that “all the facts relevant to the decision” must be known in order to decide whether to waive or not.

The questions to be answered are, therefore, first, whether or not Mr Jones acted freely, and, secondly, whether or not he acted in full knowledge of the facts relevant to the decision whether to waive or not.

As to the first question, we are a little uneasy about holding that Mr Jones was free to make his election when put to it on the first morning of the hearing. One cannot underestimate the daunting environment of the courtroom for litigants in person. Inevitably they are nervous. Their minds are bound to be totally focussed upon that which they have rehearsed. The unexpected is difficult to deal with. Mr Harper’s work for DAS and the chairman’s link with him were not matters about which Mr Jones would necessarily have had knowledge before he went on this hearing. Even though Mr Jones had qualified as a solicitor, he in fact had had very limited advocacy experience and the law of presumed and apparent bias was arcane so far as he was concerned. Given the way the matter was presented to him, he had little real choice. He had implicit faith in the tribunal, it never crossed his mind that they would not be impartial and we venture to think the overwhelming majority of those in his position would have succumbed as he did. We are left with the nagging doubt that Mr Jones was, and certainly feels that he was, hustled into acquiescing in the case continuing before that tribunal.

We do not wish to criticise Mrs Harper but, with the benefit of hindsight, we can see how she could have eased the litigant’s difficulties and avoided some of the problems that have arisen in this case. There are lessons to be learnt for all of us from the unhappy facts of this case. We assume that she and her colleagues only received the papers on the day fixed for the hearing and that they had had no adequate time to pre-read, or at least no adequate time to deal with the problem of a possible conflict of interest before the time when the hearing was about to commence. We appreciate that it may be administratively impossible to arrange matters otherwise. That is a fact of life for tribunals, magistrates and judges wherever they sit. Mrs Harper acted properly in seeking the help of the regional chairman and following his advice. So what should one do in those circumstances? The first task is coolly to assess the circumstances. If the thought crosses the judge’s mind that the conflict of interest could actually affect his mind, then he should recuse himself. More usually the judge will know he is unaffected and he must then assess how strong the appearance of bias is. Sometimes he will be confident that the fair-minded observer in the back of his court would never object. Sometimes he may be quite unsure what the reaction will be and much may depend on the stance adopted by the parties. He must be sensitive to the need for justice to be seen to be done. But one can be sensitive while remaining thick-skinned. Judges must be robust and do what they are paid to do without fear as well as without favour, faithful to their judicial oaths.

When confronted with an embarrassment of this kind some judges may find it helpful to have some guidance as to the steps that may need to be taken to deal with the problem. In setting out these factors we do not pretend that the list is comprehensive or conclusive: each case will, of course, have its own special features which will shape the procedure to be followed.

As to the second question whether or not he had full knowledge of all the facts relevant to the decision, we have also found this difficult. Waiver would never operate if “full facts” meant each and every detail of factual information which diligent digging can produce. Full facts relevant to the decision to be taken must be confined to the essential facts. What is important is that the litigant should understand the nature of the case rather than the detail. It is sufficient if there is disclosed to him all he needs to know which is invariably different from all he wants to know. So in this case and on the particular facts of this case it seems to me to have been sufficient for Mr Jones to have been told that Mr Harper was a barrister in chambers which did DAS work and that he himself had done such work. It was not necessary for Mr Jones to know on how many occasions he had been instructed and how much he had been paid for that work. The information was sufficient for Mr Jones to know, or at least appreciate the possibility that Mr Harper was on the appropriate DAS panels since Mr Jones must be taken to know how the DAS system worked. Mr Jones would also then know or appreciate the possibility that individual respondents or witnesses to be called on behalf of the employer would have it within their power to direct work to or curtail work to Mr Harper. In our judgment the disclosure, bald as it was, was sufficient for its purpose.

The striking fact about this case is that Mr Jones entertained no feeling that the tribunal was biased against him at the time when the case so unexpectedly had to be adjourned on the second day. He did not return to his desk at DAS and immediately set about making enquiries as to Mr Harper’s precise involvement with DAS. He did not take up the offer made by the regional chairman to allow the case to start again. He may, of course, have had very sound reason for not doing so. He had undergone the horror of cross-examination and he did not relish the prospect of its repetition. One has every sympathy with that position. But the fact remains that he had ten weeks to mull over the disclosure. Any handicap he may have suffered by having been so suddenly confronted with making a decision on the first morning had evaporated. By the time the matter resumed he was free to decide with all relevant knowledge to decide and, like the Employment Appeal Tribunal, we conclude that at least at that point in time he waived his right to advance the objection he now pursues in this court.

That may, in some sense, be a harsh judgment on a litigant in person. The courts must be assiduous in upholding the impartiality of its judges. Article 6 is a very powerful reinforcement of every litigant’s ordinary expectation that in this country he will have a fair trial. Jealous as the court has to be to uphold that fundamental right, fairness to the other party demands that there has to be some end to ceaselessly searching for more and more information sometimes only to fuel what has become or will become a litigant’s obsession. We are very far from saying that Mr Jones is in that class of litigant. He is not. His arguments have been presented with moderation as well as with singular ability. A litigant – indeed the court – is entitled to know all the material facts which would affect the fair-minded and informed observer but in every case a time will come when enough is enough. We understand Mr Jones’s anxieties, but we have firmly to say that we are satisfied they are without foundation.

Consequently and for the reasons we have endeavoured to explain these complaints that this tribunal was biased, lacked impartiality and so breached his fundamental human right to a fair trial is not established and we would dismiss his appeal.