Southwark v Jiminez

This appeal gives rise to the question whether an Employment Tribunal displayed apparent bias against a party to the proceedings before them such that the decision reached by the Tribunal fell to be set aside. The bias alleged by the party is not partiality as a result of some matter extraneous to the issues in the litigation such as some personal interest of a member of the Tribunal. What is alleged is that the Tribunal had formed a concluded view hostile to the party on the evidence but before hearing submissions for the party and that by their comments they showed a closed mind. Whether bias is entirely the appropriate label for such conduct may perhaps to be open question, but as it is the term used in the authorities, I will continue to use it in this judgment.

The party alleging bias in this case is the employer, the London Borough of Southwark (“Southwark”). The Tribunal sitting at London South found that Southwark had unlawfully discriminated against its employee, Tony Jiminez, contrary to the Disability Discrimination Act 1995 (“the Act”) and that Mr. Jiminez had been unfairly dismissed by a constructive dismissal. Southwark appealed to the Employment Appeal Tribunal (“the EAT”) who held that, by reason of what the Tribunal Chairman, Mr. John Warren, had said to the counsel and solicitors for the respective parties on 12 March 1999, apparent bias had been shown. The EAT (Bell J. presiding) allowed the appeal and remitted the case to be reheard by a differently constituted tribunal. On application to this court by Mr. Jiminez for permission to appeal, Sir Philip Otton, as the single Lord Justice considering the application on paper, refused permission, but on a renewed application this court (Kennedy, Mummery and Longmore L.JJ.) granted permission on 4 of the 5 grounds of appeal.

Mr. Jiminez was employed by Southwark from November 1981 to May 1992 and from 10 May 1995 until his resignation on 26 February 1998. At the time of his resignation he was the Head of Client Services in the Financial Management Services Division of the Strategic Services Department of Southwark. He was then only in his early 30s. However, he fell ill in February 1995 and his health deteriorated in mid-1995. He last worked for Southwark on 16 January 1996. He suffered from blackouts and depression. As his condition continued, retirement on ill-health grounds was supported by Mr. Jiminez’s doctor and consultant psychiatrist. Southwark’s consultant psychiatrist reported in September 1996 that Mr. Jiminez had a major depressive episode and was unlikely to return to his previous high level of functioning. However, Southwark was reluctant to accept that Mr. Jiminez would not recover within the foreseeable future. By October 1996 his pay was reduced to half pay and in December 1996 Southwark ceased to pay him. After further protracted correspondence on 26 February 1998 solicitors for Mr. Jiminez wrote to Southwark complaining of various breaches of contract by Southwark and saying that Mr. Jiminez had been constructively dismissed and no longer considered himself an employee of Southwark.

It is not in dispute that Mr. Jiminez has been suffering from myalgic encephalomyelitis and depression. Eventually on 22 June 2000 his retirement on ill-health grounds backdated to 28 February 2000 was accepted by Southwark.

On 21 May 1998 Mr. Jiminez presented his originating application to the Tribunal, complaining of unfair dismissal, discrimination under the Act and breach of contract. The hearing before the Tribunal lasted 13 days between November 1998 and May 1999 and the Tribunal record in their decision, sent to the parties on 13 September 1999, that they in addition spent 4 days in chambers (thereby indicating that they spent those days on the case without the parties or their representatives being present). Both parties were represented by Counsel, Mr. Jiminez by Ms. Harjit Grewal and Southwark by Mr. Bernard Wiltshire.

By the end of the tenth day on 11 March 1999, Mr. Jiminez and 4 witnesses called by him and 7 witnesses called by Southwark had completed their evidence. Only one other witness, Mrs. Turner who was not a significant witness, was due to give evidence for Southwark and she could not give evidence until 7 May 1999. However Southwark had given notice of another witness, Mr. Walker, Southwark’s Chief Personnel Officer, although no witness statement from him had been provided by Southwark. When asked about Mr. Walker, Mr. Wiltshire said that he would make enquiries. Had Mr. Walker given evidence, he would have been a significant witness.

The Chairman raised the question whether it would be appropriate to have a discussion with counsel the next day. Ms. Grewal told the Chairman that that would be helpful. Mr. Wiltshire was initially more cautious, as is shown by the following exchanges between the Chairman and Counsel:

“MR WILTSHIRE: The object of the discussion tomorrow will be …. ?

THE CHAIRMAN: Well I just think perhaps for the Tribunal to give some preliminary thoughts, matters it would particularly want to be addressed in submissions from counsel and depending on discussions that I have with my colleagues beforehand – the usual sorts of discussions that sometimes tribunals have with counsel, if helpful indications can be given.

MR WILTSHIRE: Yes, sir. What we are not in – we do not want to be in a position tomorrow to rehearse the submissions that will be made to you. Those will be matters that have to be carefully considered and one does not want, of course, to commit oneself at this stage before these things would be considered in great detail but, sir, I can see the force –

THE CHAIRMAN: If you think there is no point in coming, then that is fine by the Tribunal.

MR WILTSHIRE: No, sir.

THE CHAIRMAN: My colleagues and I thought about it earlier in the week. On Wednesday we thought it might help. We offered it to you. We are still of that opinion. If you do not think it will be helpful, then fine.

MR WILTSHIRE: No, sir, we think that will be helpful.”

What happened the next day was the subject of a contemporaneous note made by Shane Prince, a legal officer attending the hearing for Southwark, and sent to the Borough Solicitor and Secretary on 18 March 1999:

“I recall attending for [sic] the Tribunal in regard to this matter. Also present were Bernard Wiltshire (Counsel for London Borough of Southwark); Ms Grewal (Counsel for the Applicant); Mr Barry Smith (Solicitor for the Applicant).

I recall the Chairman made comments as follows:

“1.

The Tribunal is expressing its preliminary views in respect of this matter.

2.

In the view of the Tribunal, the way the Respondent has treated this man [the Applicant] was appalling.

3.

Leaving aside the Disability and Discrimination Act, the Applicant was not treated as one would expect an employer to treat an employee.

4.

This treatment was made worse because he was disabled and the Respondent had advice that he was disabled.

5.

No-one took on board [at the Council] that they had to have regard to the DDA.

6.

All the points put to Mr Brown by Ms Grewal [the 8 points raised in cross-examination] on all these points the Respondent had failed to explain their conduct under the headings and the Respondent had fell short in the way that was alleged under each of these headings.

7.

All of those matters are a serious breach of unfair dismissal provisions.

8.

The situation went on for a long period of time and it seems on the evidence heard that the Applicant for [sic] severely distressed by the actions of the Respondent.

9.

The preliminary view of the Tribunal is that it seemed that there was no cohesive action taken by the Respondent in respect of the Applicant’s situation and everyone blamed everyone else.

10.

The matter was not dealt with timeously. Dr Quarrie dealt with other cases much faster. There were months between appointments in this case. In other cases which had been put before the Tribunal, for want of a better word comparators, in each of those cases everyone went out of their way to accommodate the comparators in their ill-health retirement. Where those comparators wanted ill-health retirement.

11.

The liaison between the pensions people, management and the medical people was a lot better in those other cases.

12.

Because it was perceived by management that there was a premature request for medical retirement the whole case was treated on the basis that he should not get ill-health retirement.

13.

One of the bases of the claim is others got ill-health retirement and the Applicant did not.

14.

The Tribunal does not express any view on whether the Applicant should have been given ill-health retirement. The Tribunal wants to think much harder about whether not giving ill-health retirement came within the Act.

15.

One would have expected some consideration as to whether the Council should have exercised its discretion to pay monies to relieve the hardship of the Applicant.

16.

Consultation (at least letters of comfort) should have been given to the Applicant. No-one wrote to the Applicant throughout this period. Why didn’t the Council write to the Applicant? One would have anticipated that a person who was not disabled would have been dealt with differently and consulted.

17.

Looking at conduct as a whole Southwark fell short of its obligations.”

18.

The Tribunal suggested that written submissions be exchanged on 7 May. Bernard Wiltshire resisted exchange of submissions prior to Marina Turner giving evidence.

19.

The Order made by the Tribunal is as follows:-

Submissions to be exchanged within three days of the completion of Mrs Turner’s evidence;

A copy of the submissions to be sent to the Tribunal;

Observations on each other’s submissions are to be submitted in writing by the resumption of the hearing on 17 May 1999.

The Tribunal encouraged the parties to enter into discussions with a view to settling the matter.”

The hearing resumed on 7 May 1999 when Mrs. Turner gave evidence and on 17 May counsel made their submissions. Mr. Walker did not give evidence. There was no settlement.

By their decision and extended reasons, which were sent to the parties on 13 September 1999 and run to 41 closely typed pages, the Tribunal found that Mr. Jiminez was treated less favourably for reasons which related to his admitted disability, and that Southwark’s conduct amounted to a fundamental breach of contract which entitled him to resign.

Southwark sought a review of the decision, complaining that the decision was an inaccurate record of the proceedings and contending that the interests of justice required a review. The particulars given by Southwark all relate to the written decision. No complaint of bias was made. The review was refused.

On 22 October 1999 Southwark appealed to the EAT on grounds set out in 7 lettered paragraphs of which para. F was:

“The Tribunal acted oppressively and unreasonably towards [Southwark] which was detrimental to [its] case.”

However no specific reference was made to the events of 12 March 1999 either in the expansion of that ground in the Notice of Appeal or in the Affidavit dated 7 January 2000 in support by Anthony Robinson, a Principal Solicitor of Southwark, despite detailing numerous instances of alleged bias. The Tribunal Chairman was invited to comment on Mr. Robinson’s Affidavit. He refuted the allegations and expressed his and the Tribunal members’ amazement at the contents of that Affidavit.

Southwark then applied to amend its grounds of appeal. Mr. Robinson provided a second Affidavit dated 8 November 2000 answering the Chairman’s comments and exhibiting Mr. Prince’s note, but making no specific allegation of bias in respect of the events of 12 March 1999. At a preliminary hearing on 16 November 2000 Southwark was allowed to substitute fresh grounds of appeal. The allegation of bias was promoted to being the first ground of appeal, viz. “There is a real danger or possibility of bias evident in the conduct of the proceedings and in the decision reached.” 4 other grounds of appeal were specified; they do not relate to bias. In the amplification of the allegation of bias in the grounds of appeal, 9 specific allegations were detailed, the seventh of which was “The Chairman’s repeated attempts to force [Southwark] to settle the claim”. An illustration of the type of comment made to the parties before they had made submissions and before one witness had given her evidence was said to be the remark in para. 2 of Mr. Prince’s note.

For Mr. Jiminez his solicitor, Barry Smith, filed an Affidavit, refuting Mr. Robinson’s allegations and explaining that the parties’ representatives had agreed on 11 March 1999 that it would be of assistance if the Tribunal expressed their preliminary views. For Southwark Mr. Wiltshire provided an Affidavit in which no specific reference was made to the events of 12 March 1999.

At the hearing before the EAT Southwark was represented by leading counsel (other than Mr. Supperstone Q.C. who appears with Mr. Quinn for Southwark on the appeal to this court). In their full and careful judgment the EAT first considered the question of bias. All of the specific grounds of complaint were rejected save one. In para. 41 of the judgment the EAT said that so far as events before 12 March 1999 were concerned they had no sound basis for deciding that suggestions that the case should be settled indicated bias or that the Tribunal had already formed a concluded view hostile to Southwark. But they said that events on 12 March 1999 did give real grounds for concern. They noted that the Chairman had not commented on those events because they had not been raised in Mr. Robinson’s first Affidavit and were only indirectly and incompletely raised in the grounds of appeal. But they said that the material facts of the events were common ground and they had the transcript of what was said on 11 March 1999.

The EAT said of the exchanges between the Chairman and Counsel (in para. 44):

“We have no doubt that those exchanges must have left Mr Wiltshire and those who instructed him with the impression that they were simply to be told of the matters upon which the Tribunal would wish to be addressed in due course. However, matters took a significantly different course on the following day.”

The EAT then set out Mr. Prince’s note, and referred to the arguments of Ms. Grewal that the preliminary views expressed by the Tribunal did not amount to bias.

The EAT expressed their conclusion on bias in this way:

“50.

We cannot accept this defence of what the Chairman said at the time it was said. In our view, the statement (in paragraph 2) that in the view of the Tribunal the way the council had treated Mr Jiminez was “appalling” made a nonsense of the statement (in paragraph 1) that the Tribunal was expressing its “preliminary views”. Such a strong epithet could only, sensibly be applied to the council’s conduct if the Tribunal had already reached a fixed, strongly adverse view of the council’s conduct. This is reinforced by the positive statement of detailed criticism, which followed (in paragraphs 3 to 6, 10 to 13 and 15 to 17). The positive, unmodified statement (in paragraph 7) that all the matters in paragraphs 3 to 6 were a serious breach of unfair dismissal procedures effectively decided the question of unfair dismissal. This could not be unpicked by the use of the words “preliminary view” in paragraph 9. The reserving of the Tribunal’s view on whether Mr Jiminez should have been given ill-health retirement, contained in paragraph 14, could hardly have left the council in any doubt that the Tribunal would find against it on this point, if it lawfully could, in the light of the positive views expressed elsewhere, and, finally, in paragraph 17. It is true that a number of the criticisms made in the circumstances were not specifically related to the issues of disability discrimination and unfair dismissal which the Tribunal had to address, but their potential application to those issues was clear. In our view the final sentence, taken with what had gone before, was a clear attempt to put heavy pressure on the council to compensate Mr Jiminez.

51.

It is true that all, or virtually all, the evidence affecting the true issues had really been given by 12 March 1999, but the council was entitled to have its final submissions fairly heard. What the Chairman said, which reads like a prepared list of decided criticisms of the council would, in our opinion, be reasonably understood by the impartial, informed onlooker as meaning that the Chairman, and indeed the Tribunal, had already formed a concluded view hostile to the council on a number of important matters which fell for decision, after final submissions, when reaching a conclusion on the claims of disability discrimination and unfair dismissal. It is true that the members of the Tribunal spent a considerable period in chambers before producing its Decision, but it is clear from the eventual, thirty-eight page Decision, that there were a large number of detailed findings which the Tribunal wished to express.

52.

In our view the Chairman’s uninvited expressions of view were both injudicious and untimely even at the late stage of the proceedings at which they were given. We cannot accept that they can be justified, after the event, by an examination of the evidence to see whether they can be supported or portrayed as inevitable conclusions. That would be tantamount to saying that if the evidence is strong enough a tribunal of any kind can lawfully express final views before the losing party’s final submissions have been heard.

53.

In our judgment, the Chairman’s statement of view on 12 March 1999, expressed to be those of the Tribunal, would have led a fair-minded and informed observer to conclude that there was a real possibility or a real danger, at least, that the Tribunal was biased against the council in the sense of having reached firm and final conclusions against it on important matters before its case, which of course included its final submissions, had been heard.”

The EAT rejected all the other grounds of appeal. They did not accept an argument that the allegation of bias was fortified by the judgment of His Honour Judge William Crawford Q.C. sitting as a judge of the Queen’s Bench Division in High Court proceedings brought by Mr. Jiminez against Southwark for damages for injury to his health and consequent loss. As the EAT observed, that judge dismissed that claim in terms which were as favourable to Southwark and its officers and as unfavourable to Mr. and Mrs. Jiminez as the terms of the Tribunal’s decision were favourable to Mr. and Mrs. Jiminez and unfavourable to Southwark and its officers. The EAT were, in my view, plainly right on that point, the matters in issue in that case not being the same as the matters in issue before the Tribunal.

Mr. Jiminez then sought from this court permission to appeal. In his judgment giving permission Kennedy L.J. expressed concern that the Tribunal had not been given the opportunity provided for by para. 9 of the Employment Appeal Tribunal Practice Direction to comment on the allegation of bias as it had ultimately been developed before the EAT. He gave directions to enable those comments to be given.

The Chairman then gave his comments. He said:

“The Tribunal had suggested to the parties on 11 March at the close of evidence on that day, in open Tribunal and in the presence of shorthand writers that if it was the parties’ wish and Counsel considered it may assist, the Tribunal were prepared to highlight some matters which were concerning the Tribunal in the hope that the parties could deal with those concerns in further evidence and/or submissions.”

He referred to Mr. Prince’s note and to a note made by Ms. Grewal of differences from his note and said that there was little to choose between the two, but where there were differences, Ms. Grewal’s note was more accurate. The Chairman then said that the Tribunal had not made up their mind as to whether the treatment of Mr. Jiminez was on the grounds of his disability. He explained that as Southwark had admitted that Mr. Jiminez was disabled, it was for Southwark to satisfy the Tribunal that its treatment of Mr. Jiminez was justified. The Chairman said that in the comments which the Tribunal made they were highlighting concerns so that Southwark could deal with the Tribunal’s concerns in its closing submissions and in particular why it submitted that its conduct was justified. He explained that the Tribunal were concerned at Mr. Jiminez not having had a source of income for some time before his resignation and at the passage of time after that. The Chairman referred to specific concerns relating to Southwark’s medical evidence and said that the Tribunal were pointing out that they would need an explanation. The Chairman also referred to the Tribunal’s concern that Southwark had not even considered whether to make an ex gratia payment to Mr. Jiminez. The Chairman ended:

“So faced with further delays and the situation where the Respondent accepted that the Applicant was disabled the Tribunal were attempting to bring some commonsense to matters to enable the parties to apply their mind to the situation and perhaps resolve matters in the then forthcoming forced postponement and so that the Tribunal’s concerns could be addressed by the parties in their submissions.”

Mr. Robinson then put in a third Affidavit commenting on the Chairman’s comments, but he does not deal with the events of 12 March 1999. Mr. Wiltshire has also, belatedly, put in a second Affidavit to which Mr. Jiminez has not objected. Mr. Wiltshire explained that his original reluctance to accede to the Chairman’s suggestion of a meeting, as he put it, “to see where we were” was because he thought that the Chairman’s behaviour was redolent of a biased attitude to Southwark’s case. Mr. Wiltshire said that he feared that Southwark would be put at a further disadvantage before all the other evidence had been heard and its final submissions prepared. He said that what occurred was quite different from “usual sorts of discussions that sometimes tribunals have with counsel” and that it became clear that the Tribunal had already made up their mind although all the evidence had not been heard and the final addresses had not been delivered.

Mr. John Cavanagh Q.C., who did not appear before the Tribunal or the EAT, appears before this court with Ms. Grewal for Mr. Jiminez. He submits:

(1)

the EAT erred in law in reaching a conclusion on the issue of bias without first seeking the comments of the Chairman on Southwark’s allegations about the events of 12 March 1999, and this court should decide that issue afresh in the light of those comments;

(2)

in any event the EAT erred in law in concluding that a fair-minded and informed observer would conclude that there was a real possibility of bias in the expression by the Tribunal of preliminary views at a stage of the proceedings when almost all of the evidence had been heard, and as Southwark had consented to the Tribunal giving those views it could not subsequently complain of that expression of view.

Mr. Supperstone submits that the EAT correctly directed themselves as to the law and that their decision betrays no error of law. He accepts that the EAT were in breach of para. 9 of the Practice Direction, but he points out that this point was not drawn to the attention of the EAT and argues that nothing flows from the failure to obtain the Tribunal’s comments, the Chairman’s notes not adding anything material to what appears in the transcript of what was said on 11 March and to Mr. Prince’s note. He accepts that an expression of preliminary views may be helpful and is not in itself an indication of bias. But he submits that what is expressed to be a preliminary view may not be truly a preliminary view and may amount to a concluded view (1) because of the strength of the language used and (2) because of the context in which the Tribunal give their views. The focus of his first point was the epithet “appalling”. He argued further that the comments recorded by Mr. Prince in paras. 2, 3, 7 and 17 of his note had effectively determined the issue of unfair constructive dismissal against Southwark and that the comments in paras. 2-6, 10, 12-14, 16 and 17 had likewise determined the claim under the Act against Southwark, in each case, as he puts it, leaving the Tribunal with no room to manoeuvre. On the second point relating to context, he relied on Mr. Wiltshire’s evidence in his second Affidavit to argue that what occurred on 12 March 1999 was not with Southwark’s consent and that Southwark only expected to be told the matters on which the Tribunal wanted submissions to be made. He suggested that the real purpose of the Tribunal was not “to highlight some matters which were concerning the Tribunal in the hope that the parties could deal with those concerns in further evidence and/or submissions,” as the Chairman had said, in his comments, but to tell Southwark that it was going to lose and had better settle.

It is common ground that (1) a judicial decision may be vitiated by the appearance of bias no less than actual bias and that the test for such apparent bias is whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased (see Porter v Magill [2002] 2 AC 357 at p. 494H per Lord Hope); and (2) that the premature expression of a concluded view or the manifesting of a closed mind by the tribunal may amount to the appearance of bias.

On the first point it is important to stress that the test to be applied is an objective one. The fact that the Tribunal were amazed at the allegation of bias or that Southwark and its legal advisers were surprised at what was said or regarded the comments as displaying bias cannot be determinative for the appellate tribunal which must conduct an objective appraisal of all the material facts. It is no less important to emphasise the qualities of the observer through whose eyes the appraisal is conducted, viz. of being fair-minded and informed. The observer in the present case must be assumed to have been present throughout the hearing and to be aware that on 12 March 1999 the evidence was very largely completed but with submissions yet to be heard. The observer must also be taken to have informed himself of the procedure and practice of tribunals in this jurisdiction.

In that context the remarks of Sir Thomas Bingham M.R. (giving the judgment of this court consisting of himself, Stuart-Smith and Beldam L.JJ.) in Arab Monetary Fund v Hashim (1993) 6 Admin LR 348 at p. 356 A-C are relevant:

“In some jurisdictions the forensic tradition is that Judges sit mute, listening to advocates without interruption, asking no question, voicing no opinion, until they break their silence to give judgment. That is a perfectly respectable tradition, but it is not ours. Practice naturally varies from Judge to Judge, and obvious differences exist between factual issues at first instance and legal issues on appeal. But on the whole the English tradition sanctions and even encourages a measure of disclosure by the Judge of his current thinking. It certainly does not sanction the premature expression of factual conclusions or anything which may prematurely indicate a closed mind. But a Judge does not act amiss if, in relation to some feature of a party’s case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact. An expression of scepticism is not suggestive of bias unless the Judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be.”

Similarly in Harada Ltd. v Turner [2002] EWCA Civ 599 Pill L.J. (with whom Mantell L.J. and McKinnon J. agreed) said (at para. 31):

“[Counsel] for Harada accepts that judges may make remarks at the beginning or in the course of hearings which indicate the difficulties a party faces upon one or more of the points at issue. Provided a closed mind is not shown, a judge may put to counsel that, in the view of the judge, the counsel will have difficulty in making good a certain point. Indeed, such comments from the Bench are at the very heart of the adversarial procedure by way of oral hearing which is so important to the jurisprudence of England and Wales. It enables the party to focus on the point and to make such submissions as he properly can.”

In BLP UK Ltd. v Marsh [2003] EWCA Civ 132, in a judgment with which Keene L.J. and Jacob J. agreed, I pointed out (in para. 39) that it was inevitable that a tribunal will react to what is paraded before them, and that the chairman is fully entitled to try to obtain an answer from the party which might otherwise be subject to an adverse finding to points which trouble the Chairman as being points of great relevance to the outcome of the case.

An instance of a case where the Tribunal were held to have given the impression of a closed mind by making premature remarks is Peter Simper & Co. Ltd. v Cooke [1986] IRLR 19. In that case remarks hostile to the employer and suggestive of a concluded view were made by the chairman in the course of the cross-examination of the employee on the opening day and at other times during the first and second day before the employer’s case had been opened. Giving the judgment of the EAT, I said this (at para. 17):

“On all matters to which we have referred the chairman was making comments which would, in our opinion, reasonably be understood by the impartial onlooker as meaning that the chairman had already formed a concluded view hostile to the employers on matters which fell for decision at the conclusion of the case after hearing all the evidence and arguments. Of course, we accept that the chairman, experienced as he was, would not have made a final decision until the end of the case; but we feel bound to observe that his comments were injudicious and untimely. In so saying, we do not in any way underestimate the value, both in the formal English judicial system as well as in the more informal Tribunal hearings, of the dialogue that frequently takes place between the judge or Tribunal and a party or his representative. Nor do we wish to cast any doubt on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies. But there is a time and a place for the expression of concluded views by the Tribunal. The middle of a cross-examination before the employers’ case has been opened or the employers’ arguments presented is, in our view, plainly not such a time for such strongly expressed views to be aired by the chairman.”

The instances of cases where what a tribunal said at an interim stage of the proceedings has not been held to amount to apparent bias are greater in number. They include Porter v Magill, in which a challenge was made to an auditor’s certificate on the ground of apparent bias because of the way the auditor conducted himself when giving a televised press conference announcing his interim conclusion. The auditor had expressed his provisional views in florid language. Lord Hope said at p. 495 D that the auditor had made an error of judgment when making his statement at a press conference, but Lord Hope concluded (at p. 495 G):

“there was nothing in the words he used to indicate that there was a real possibility that he was biased. He was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point.”

There is no impropriety in a tribunal encouraging the settlement of proceedings. In Harada at para. 33 Pill L.J. referred to the fact that the Tribunal Chairman in that case had suggested that the parties might benefit by 10 minutes to discuss the case, which Pill L.J. took to be an indication that Harada should settle the case. Pill L.J. continued:

“It is often possible for a judge, having explored the difficulties on the facts or legal issues of the case with counsel, to give such an opportunity. There is certainly nothing wrong with it in principle, and it is a course which often, helpfully, is taken.”

In Hart v Relentless Records [2002] EWHC 1984 Jacob J., after hearing part of the evidence, called counsel into the judges’ corridor to express his views on the claimant’s claim and to invite the parties to consider a settlement of the proceedings. When invited to recuse himself on the ground of apparent bias, Jacob J. refused, holding that expressing views for the encouragement of a settlement did not indicate bias. It is unnecessary for this court to decide whether on the particular facts of that case the strong expression of views at the particular stage of proceedings when it was done did or did not cross the permitted line.

I return to the arguments of Counsel. In my judgment the EAT did err in not obtaining the comments of the Chairman on the events of 11 March 1999. That contravened the provisions of para. 9 of the Practice Direction which provide for the Chairman to receive the relevant evidence in support of a complaint about the conduct of the Tribunal so that he has an opportunity to comment, and which state in sub-para. 6:

“The EAT will not permit complaints of the kind mentioned above to be raised or developed at the hearing of the appeal unless this procedure has been followed.”

Whilst it is true that the EAT were aware of the substance of the comments made by the Chairman on 12 March 1999 through Mr. Prince’s note and the generally minor variations noted by Ms. Grewal, on one paragraph, para. 6, her version shows differences of some significance particularly when read with the Chairman’s comments. As the Chairman preferred as more accurate Ms. Grewal’s version to that of Mr. Prince, we must accept that what is recorded by Ms. Grewal was correct. Her version of para. 6 was this:

“All of the matters put to Keith Brown yesterday – the 8 points – we find that the Respondents really do have to explain their conduct under those headings. Number of hurdles to jump to convince us.”

Mr. Brown was the Head of Financial Services for Southwark, to whom Ms. Grewal put 8 points in cross-examination going to what she alleged was a serious breach of the duty of trust and confidence by Southwark and discrimination under the Act.

Although it is apparent from the transcript of what was said on 11 March 1999 that the Chairman only referred to wanting to be addressed in submissions on matters which were the Tribunal’s “preliminary thoughts”, and did not expressly mention the possibility of further evidence on those matters, in the light of the Chairman’s comments and Ms. Grewal’s para. 6 it would appear that the possibility of Southwark adducing further evidence to explain its conduct and to meet the Tribunal’s concerns was a relevant consideration for the Tribunal when the Chairman said what he did on 12 March 1999. That is hardly surprising, given that Southwark had not closed its case by then, and whilst Mrs. Turner could give no significant evidence, Mr. Walker, who features prominently in the Tribunal’s description of the material events after Mr. Jiminez went ill, might well have been able to do so; the delay of 8 weeks before the hearing was to be resumed might have been thought an opportunity for Southwark to “apply their mind to the situation” and to reconsider the evidence on which it relied in the light of the Tribunal’s concerns.

In any event, the Chairman’s comments with their explanation of the Tribunal’s concerns and his reiteration that these were the matters which the Tribunal wanted Southwark to deal with are entirely consistent with and support the genuineness of the Chairman’s offer on 11 March 1999 of “thoughts” which were only “preliminary” and of the Chairman’s opening comment the next day that the views about to be expressed were also “preliminary” (see also para. 9 with its similar reference to the preliminary view of the Tribunal). The Chairman expressly denied in those comments that the Tribunal had made up their minds on the causal link between the treatment of Mr. Jiminez and his disability. In my judgment the EAT were wrong not to avail themselves of the assistance which they would have received if they had followed the procedure in the Practice Direction. That was a material error, which entitles this court to look at the issue of bias afresh.

I would add that in any event Mr. Supperstone did not dispute that this court should decide this issue in the light of the material facts, though he supported the conclusion reached by the EAT. Despite the clear view of the EAT, I cannot accept that Southwark and its legal representatives should have understood from the Chairman’s offer on 11 March that only a list of matters to be addressed was to be given the next day without any indication of the Tribunal’s thinking on those matters, still less that the expression of views was uninvited when Mr. Wiltshire had accepted as helpful the offer of an indication of the Tribunal’s preliminary thoughts. That the Chairman should say that they were matters on which they would particularly want to be addressed is not inconsistent with the Tribunal indicating their preliminary thinking on those matters, so that the parties would understand what points were at that stage of particular concern to the Tribunal, having heard nearly all the evidence. Counsel of any experience would have found it helpful for the Tribunal to provide an indication of the way in which their minds were working, particularly when there was about to be a lengthy adjournment in which to prepare their responses to that indication. I accept that the “preliminary views” must be understood in their context which includes what the Chairman had said the previous day, but looking at the evidence objectively for my part I see no material distinction between the “preliminary thoughts” offered on 11 March 1999 and the “preliminary views” expressed on 12 March 1999. Mr. Wiltshire sought no explanation of “the usual sorts of discussions that sometimes tribunals have with counsel” offered by the Chairman, nor does he explain in his Affidavit why his notion of those discussions differed from what occurred.

Southwark’s representatives could have been in no doubt that all the views which the Chairman proceeded to give on 12 March were expressed to be preliminary views, and that included the view that the way Southwark treated Mr. Jiminez was appalling. I have some difficulty in understanding why a strongly expressed view cannot be a provisional view, leaving it open to the party criticised to persuade the Tribunal as to why that view was wrong and why the party’s conduct was justified. Of course the more trenchant the view, the more the attachment of the label “preliminary” may need scrutiny to see whether the view was truly preliminary and not a concluded view. But it is in my judgment unduly cynical to reject the repeated assertions that the views were preliminary thoughts or views, particularly when the Tribunal have gone to the trouble of pointing out the various matters which needed to be addressed in the submissions directions for which were given. It is not inconsistent with the preliminary nature of the views that the various points would, if not answered to the Tribunal’s satisfaction, leave Mr. Jiminez successful in his claims against Southwark. If the Tribunal had really closed their minds to the possibility that Southwark might answer their concerns satisfactory, they need not have bothered to set out those concerns. Particularly in the light of the Chairman’s comments, I can see no proper basis for doubting the genuiness of the Tribunal in saying that the views were only preliminary. Nor does the encouragement of a settlement show that the Tribunal’s views were fixed.

Accordingly, I would respectfully disagree with the conclusion of the EAT. This is not a case like the Simper case where concluded views were being expressed in unqualified form against the employer even before its case was opened and its evidence heard. On the contrary, in this case the bulk of the evidence had been heard and the Tribunal would have been well aware of the impression made on them by that evidence. It was helpful to the parties to be given that indication of preliminary views so that the submissions yet to be prepared and, if thought fit, further evidence could be properly focussed on the Tribunal’s concerns. In my judgment no apparent bias was shown.

In conclusion I would add a word of caution for tribunals who choose to indicate their thinking before the hearing is concluded. As can be seen from this case, it is easy for this to be misunderstood, particularly if the views are expressed trenchantly. It is always good practice to leave the parties in no doubt that such expressions of view are only provisional and that the Tribunal remain open to persuasion. But for the reasons given I would allow the appeal, set aside the order of the EAT and restore the decision of the Tribunal.

I agree.

I also agree.