Ansar v Lloyds TSB Bank Plc & Ors

LORD JUSTICE WALLER: Mr Ansar appeals to this court with permission of Maurice Kay LJ a decision that as a Chairman of an Employment Tribunal one should not recuse himself from presiding over a Directions Hearing. In short, what Mr Ansar submits is that since he had made allegations of bias and misconduct against that Chairman in connection with previous proceedings, the Chairman was bound not to sit on the Directions Hearing in further proceedings brought by him.

The story can be shortly told. Mr Ansar brought proceedings against the respondents. They were heard over a period of many days. He challenged the result of those proceedings and included in his challenge was an allegation against the Chairman of the Employment Tribunal, a Mr Kolanko, of improper conduct and of bias. Mr Ansar had in fact commenced a second set of proceedings, which were stayed pending the conclusion of the first case. Once the first case had been completed the employers made an application that certain parts of the second proceedings should be struck out. That application was due to come on before Mr Kolanko sitting alone.

Mr Ansar then made an application in that second case to the Regional Chairman objecting to the further involvement of Mr Kolanko supporting that application with a letter. The application was dated 5 July and it was in two parts. It is only part 1, which is of relevance, and it is in the following terms:

“The Claimant objects to the continued involvement of Chairman Kolanko in these proceedings.

“Appeal on case 3101168/2004 has been remitted to the Employment Appeals Tribunal and pending further consideration. The nature of the appeal raises serious questions about both the partiality of Chairman Kolanko and the appropriateness of his sitting in the substantive hearing.

“A further complaint to the Lord Chancellor’s Department/ Department of Constitutional Affairs has been submitted in conjunction with the appeal to the EAT. The Claimant has a genuinely held belief that Chairman Kolanko exhibited apparent bias not only throughout the hearing of the aforementioned case but also in the pre-hearing review leading up to the full hearing. Notwithstanding the existence of serious concerns relating to Chairman Kolanko’s conduct towards the Claimant, his witnesses and the Respondent, there occurred mis-directions and errors in the application of the law which lead to utter perversity in the finding of fact established and subsequent decision.

“It is requested that Chairman Kolanko recuse himself from any further involvement in the Claimant’s case without delay and that, subject to Part 2 of this application, if it is appropriate to hold a Pre-Hearing Review, a new Chairman be appointed accordingly.”

That application was supported by a letter dated 5 July and that letter so far as material reads as follows:

“Chairman MP Kolanko presided over proceedings in relation to the first action 3 101 16812004 which included the full hearing which commenced on 27th September 2004 and a pre-hearing review held on 27th August 2004. As a procedural issue, it is contended that in accordance with the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, Chairman Kolanko should have been prohibited from sitting in the full hearing due to his involvement in the pre-hearing review.

“Serious concerns have been raised relating to Chairman Kolanko's apparent bias toward the Respondent during the pre-hearing review, following which you may recall I wrote to you on the 3rdSeptember 2004 expressing some of my thoughts. Mr Kolanko made a number of decisions as part of the pre-hearing review process which included taking legal advice from the Respondent's counsel during the hearing, changing the name of the Respondent to a company which did not exist and declining witness orders for the Claimant whereas they were provided for the Respondent, stating

'Your request for witness orders is refused...there seems little purpose in ordering witnesses who do not wish to give evidence and cannot be the subject of cross examination by the person calling them...'

(Directions dated 14thSeptember 2004)

“Throughout the full hearing, Chairman Kolanko overlooked numerous instances of serious misconduct on the part of the Respondent which included the breaching of several Tribunal Orders, ignoring disclosure requirements, making dishonest representations to the Tribunal about them and pressurising and victimisation of Claimant witnesses (to which they offered direct evidence). These are only a few examples of the Respondent's misconduct that were raised in open Tribunal and it should be noted that the Respondent suffered no detriment whatsoever in spite of many requests and Applications made by the Claimant.

“In addition to procedural issues, the Chairman treated Claimant witnesses badly, potentially discriminating against the Claimant's only ethnic minority witnesses by first having their statements almost entirely struck out and secondly reprimanding them when they attended as observers - when Respondent witnesses attended as observers and acted in a disruptive manner no comment was made towards them.

“Witnesses to proceedings have commented about the unfair and harsh treatment of the Claimant throughout the 64 day hearing, which Chairman Kolanko allowed to be extended from the original 12 day period set by Chairman Kurrein. Not only was this contrary to overriding principles of justice which govern Employment Tribunals (especially as the Claimant was a litigant in person) but this occurred as Chairman Kolanko allowed irrelevant evidence to be entered into the proceedings which substantially distracted the Tribunal from the hearing issues relating to the originating particulars. Particular note should be given to the fact that the Chairman allowed matters to be progressed which he knew would seriously prejudice the second action, this in spite of applications asking him to set them aside in the interests of justice.

“Having procured an utterly perverse decision with errors in both the application of the law and findings of fact, Chairman Kolanko is now involved in the hearing of the second action 3104051/2004 intending to sit alone on 3rdAugust 2005 in a pre-hearing review. The Claimant is fearful that the Chairman's apparent bias and previous errors will unfairly prejudice this new action. Particular objections to this are outlined in the attached Application.”

Mr Kolanko also in fact wrote to the Lord Chancellor’s department on 4 July 2005, which is page 53 of the bundle. It does not add anything and it is unnecessary to quote from that letter.

The Regional Chairman responded by letter dated 21 July, which is at page 58 in the bundle:

“Further to my letter of 5 July, I have been able to look into the matters raised in your letter and also consider your application.

“Dealing first with your letter of 5 July, you have raised a number of matters concerning the hearing in case no. 3101 168/04. The hearing took place over 36 days in September and October 2004 and January and February 2005. The members met for a further 10 days to consider the decision, and the judgment with reasons, set out in a 65 page document, was sent to the parties on 27 April.

“I understand that you have entered an appeal against that judgment to the Employment Appeal Tribunal.

“In essence, the majority of your letter of 5 July concerns the conduct of the proceedings by the Tribunal in your first set of proceedings. As these are now the subject of an appeal to the Employment Appeal Tribunal, I consider that it would not be appropriate for me to comment and I will consider the matter once the Employment Appeal Tribunal gives its judgment.

“The conclusion of your letter and your application relates to your second set of proceeding, namely case no. 3104051/04, in which you have again raised discrimination complaints against Lloyds Bank and others. In essence, you are disappointed that Mr Kolanko is involved in these new proceedings when you have raised issues of bias etc. against him in relation to the first set of proceedings.

“The situation is that the allocation of Chairmen to hear cases is a matter for the Regional Chairman and, in carrying out that function, I am not influenced by requests by any party for the case to be heard or not to be heard by any particular Chairman.

“In the second set of proceedings there is a Pre-Hearing Review to take place on 3 August to determine applications made, which include applications to strike out the proceedings on the basis that the fats or issues have already been determined in the first set of proceedings.

“It appears to me that it is advantageous fir the Chairman of the Tribunal that determined the first set of proceedings to deal with that Pre-Hearing Review.

“Accordingly, your request for Mr Kolanko not to conduct that Pre-Hearing Review is refused.

“Should the proceedings continue beyond that point, then I will give consideration to whether it would be appropriate for Mr Kolanko to continue to hear the case in view of the decisions reached by the Tribunal in the first set of proceedings.

“As the second set of proceedings were held in abeyance for some time, it is inappropriate for the Pre-Hearing to be cancelled to await the outcome of the appeal in the first set of proceedings.

“Yours sincerely …”

The Regional Chairman thus refused the application and Mr Kolanko was appointed to hear the Directions Hearing. Mr Ansar in fact responded to the Regional Chairman’s letter on 22 July at page 60 of the bundle and he in that letter drew the attention of the Regional Chairman to certain authorities, including Lodwick v London Borough of Southwark, Locabail (UK) Ltd v Bayfield Properties Limited [2000] IRLR 96 and in particular he drew attention to Breeze Benton Solicitors v Weddell UKEAT/0873/03/SM; as its citation indicates, a decision of the Employment Appeal Tribunal. He drew attention in particular to paragraph 44 of the judgment in that case, to which I will return.

In the result, the application came on before Mr Kolanko and by this time Mr Ansar had put in a full Notice of Appeal in the first proceedings and that Notice of Appeal contained more detail of the allegations that he was making. The Notice of Appeal is at tab 15 of the bundle.

The Notice of Appeal covers a considerable number of pages and so far as the bias allegation is concerned it covers I think nearly 30 paragraphs. The nature of the allegations perhaps appears more clearly from the Notice of Appeal than it had in the letters to the Regional Chairman. It alleges that the Chairman on one occasion acted on the advice of counsel for the respondents. It criticises rulings that Mr Kolanko had made in relation to witnesses and it asserted that:

“One of the clearest examples of apparent bias was when on 10 February 2004 (Day 34), to signal the adjournment for a morning break at 11.15, Chairman Kolanko rose and turning to Mr Gidney only, he proceeded to nod at the Respondent’s counsel Mr Gidney, without any acknowledgement either of the claimant or his aid. This was a blatant and overt act noticed only by the Claimant and his aid but also Tribunal observers present; it was considered offensive to the Claimant and his aid and it is stipulated that a reasonable and fair-minded individual present it would have looked both biased and suspicious in the extreme.”

He then also asserts that there was an occasion when Mr Gidney was lunching with a witness during his evidence. The Ansar witnesses had been told they must not contact anybody, and it is asserted that what was being assumed by the Chairman was that Mr Gidney was not acting with any impropriety. There are criticisms of leading questions. There are assertions that Mr Gidney was being treated more leniently in relation to the questions he was being allowed to ask than Mr Ansar. That was the nature of the allegations that were being made.

When the Directions Hearing came on, Mr Ansar applied to Mr Kolanko himself to recuse himself and Mr Kolanko refused to do so. When he ultimately gave his reasons for the decisions that he took at that hearing, Mr Kolanko included paragraphs relating to the application to recuse himself in these terms:

“2.

The hearing was prefaced by repeated application by Mr Ansar that I should recuse myself from hearing the applications on the grounds that Mr Ansar had appealed an earlier Judgment of which I was the Chairman, and had made criticisms of the manner in which I had conducted the case, in particular, that I had displayed bias against him.

“3.

Mr Ansar had made his complaint to the Regional Chairman, who determined that as I heard the first case it was appropriate for me to hear this case. The Regional Chairman, accordingly, declined Mr Ansar’s request that I recuse myself.

“4.

Having indicated to Mr Ansar that the Regional Chairman had ruled on the matter, Mr Ansar did not pursue his claim for me to stand down, but asked that I should record that my continuing to hear the Pre-Hearing Review was not with his consent.”

Mr Ansar has submitted that those paragraphs, 2, 3 and 4, give a misleading impression of what in fact occurred. He submits that they do not describe the full extent of Mr Ansar’s protest which, he says, was both at the beginning of the hearing and again after the luncheon adjournment. He submits that the paragraphs could give the impression that Mr Ansar concurred in Mr Kolanko continuing. As was indicated to Mr Ansar during argument, there is very little in that criticism. The paragraphs clearly record Mr Ansar’s application that Mr Kolanko should recuse himself and clearly record Mr Ansar’s lack of consent to the Chairman continuing. If there is a point to be made, it could be said that the paragraphs indicate that the Chairman did not independently consider whether to recuse himself by reference to the allegations made in the Notice of Appeal, but Mr Ansar submitted, and accepted, that the Chairman did consider the Notice of Appeal and the details of it and indeed, it was on that which he ruled after the luncheon adjournment.

The reasons continue with the details of what was argued before Mr Kolanko on that day. They can play no part in the issue that is before this court. Some matters were decided against Mr Ansar, some matters were found in his favour.

Mr Ansar, as by now will be clear, was already taking his first set of proceedings to the Employment Appeal Tribunal and he took various issues to the Employment Appeal Tribunal, including the question whether Mr Kolanko should have conducted this hearing. It is that issue on which he has permission to appeal to this court and it is on that issue therefore we can concentrate.

Burton J on that issue considered the authorities relating to bias. He also considered the decisions of the Employment Appeal Tribunal, which could have been said to support Mr Ansar’s argument, and he summarised the law with some care in his judgment. Indeed his summary of the law and the points that arise from the various cases in this area has been accepted by Mr Ansar as an accurate summary, being a summary it should be said prepared by Mr Gidney. He obviously himself accepts that summary. Burton J sets out that summary in paragraph 13 of his judgment as he puts it, slightly reordering the propositions, and they run from 1 to 11:

“l.

The test to be applied as stated by Lord Hope in Porter v Magill 620021 2 AC 357, at para 103 and recited by Pill LJ in Lodwick v London Borough of Southwark at para 18 in determining bias is: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased.

“2.

If an objection of bias is then made, it will be the duty of the Chairman to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance: Locabail at para 21.

“3.

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL ex parte CJL [l9861] 161 CLR 342 at 352, per Mason J, High Court of Australia recited in Locabail at para 22.

“4.

It is the duty of a judicial officer to hear and determine the cases allocated to him or her by their head of jurisdiction. Subject to certain limited exceptions, a judge should not accede to an unfounded disqualification application: Clenae Ptv Ud v Australia & New Zealand Banking Group Ltd [l9991] VSCA 35 recited in Locabail at para 24.

“5.

The EAT should test the Employment Tribunal's decision as to recusal and also consider the proceedings before the Tribunal as a whole and decide whether a perception of bias had arisen: Pill LJ in Lodwick, at para 18.

“6.

The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection: Locabail at para 25.

“7.

Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be shown: Pill LJ in Lodwick above, at para 21, recited by Cox J in Breeze Benton Solicitors (A Partnership) v Weddell UKEAT/0873/03 at para 41.

“8.

Courts and tribunals need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment (or stay) cannot: Sedley LJ in Bennett at para 19.

“9.

There should be no underestimation of the value, both in the formal English judicial system as well as in the more informal Employment Tribunal hearings, of the dialogue which frequently takes place between the judge or Tribunal and a party or representative. No doubt should be cast on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies: Peter Gibson J in Peter Simpler & CO Ltd v Cooke [l986] IRLR 19 EAT at para 17.

“10.

In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail at para 25.

“11.

Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise (Locabail at para 25) if:

“a.

there were personal friendship or animosity between the judge and any member of the public involved in the case; or

“b.

the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or,

“c.

in a case where the credibility of any individual were an issue to be decided by the judge, the judge had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or,

“d.

on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or,

“e.

for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues.”

It is right to say that Mr Ansar before us accepted Burton J’s view of the law including Burton J’s view in relation to the two EAT decisions, which could be said to support an argument that if any complaint had been made about the conduct of a Chairman or a member of a tribunal that member or Chairman should not sit on a case concerning the complaint. Mr Ansar very properly did not seek to argue that any complaint should lead to recusal. Mr Ansar suggested, and this is the nub of his argument, that there were weak recusal applications and strong recusal applications. Thus his argument, as he put it right at the end of his submissions, was that it is the substance or nature or allegations that are being made, which is the important aspect on which a court should concentrate. His case is that the nature of the allegations he was making was on the strong side of the line and not on the weak side of the line.

So, his attack was in reality on the balancing exercise carried out originally by the Regional Chairman, then by Mr Kolanko and ultimately reviewed by Burton J. I can say straight away that in my view Burton J’s review of the balancing exercise was impeccable. In my view, the Regional Chairman’s decision cannot be impugned and nor can that of Mr Kolanko, remembering that the decision was whether Mr Kolanko, following a hearing of many weeks on one aspect of the dispute between Mr Ansar and the respondents, should sit on a Directions Hearing relating to a second matter and that the question of whether he should sit on any full hearing would be reviewed at a later date.

Burton J refers to two authorities which were not referred to in the summary, Amec Capital Projects v Whitefriars City Estates Ltd [2005] 1 AER 723 and the decision in the Court of Appeal in Dobbs v Theodos Bank NB [2005] EWCA Civ 468. It is unnecessary to make any citation from Amec as it seems to me the passage cited by Burton J at paragraph 19 is simply a support for the proposition or at least one or more of the propositions that he has set out, but what was said in Dobbs by Chadwick LJ in one sense gets to the nub of what the Regional Chairman and Mr Kolanko himself had to consider in this case. The quotation from Chadwick LJ in Dobbs reads as follows:

“He tells ... us that his criticisms are directed, in particular, at me personally. That, he says, stems from my conduct in relation to a hearing on an application for permission to appeal on related proceedings …

“7.

It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course, because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant - whether it be a represented litigant or a litigant in person - criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases, simply by criticising all the judges they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised - whether that criticism was justified or not.”

Burton J then continued by referring to Breeze v Benton and the dictum of Cox J and then a dictum of HHJ McMullen QC. In Breeze v Benton in paragraph 44, Cox J said:

“‘Secondly, the very fact that Mr Reilly had complained about the Chairman's conduct made it inappropriate that the Chairman should sit. The significance of the complaint lay in the fact that it had been made and that the Chairman knew that he had complained and was aware of the specific allegations made about his conduct.”

HHJ McMullen QC in Deman v Association Of University Teachers & Ors UKEATPA/ 0666/05/MAA said:

“1.

Mr Deman is the subject of an extended civil restraint order imposed under CPR3.11 first by Brooke LJ and then by Buxton LJ on 15 June 2005: Deman v City University and others [2005] EWCA Civ 795 following a finding that he persistently pursued proceedings which were totally without merit. That applies to the Court of Appeal only. Before the EAT he is entitled to be, and to be seen to be, treated fairly.

“2.

This case is proceeding under Rule 3(10) following Burton P’s opinion that it contained no reasonably arguable point. The case dates from 1995, having had at least one excursion to the Court of Appeal and has been the subject of re-hearing before an Employment Tribunal constituted afresh and descending upon certain limited matters as determined by the Court of Appeal: [2003] EWCA Civ 329.

“3.

The Employment Tribunal in a judgment given with reserved reasons on 8 April 2005, following a hearing over several weeks, dismissed all of the claims of the Claimant, Mr Deman. They are claims of discrimination and victimisation, contrary to the Race Relations Act.

“4.

The President, conducting the sift, determined that none of the nine points met the standard of a reasonably arguable prospect of success and therefore the matter would be taken no further pursuant to Rule 3(7). He did so, having considered the papers, including a Notice of Appeal drafted by Mr John Davies QC who appears today.

“5.

The Claimant was given, as is his right, an opportunity, if dissatisfied, to have the papers put before a judge and so in accordance with the Practice Direction this hearing was constituted. On 17 September 2005 a letter was sent by Council for Ethnic Minority to the Registrar, copied to the Lord Chancellor and Scotland Yard for ethnic harassment and intimidation by EAT staff and judiciary. It is not on the record, because the Claimant is represented by solicitors. It indicated that an oral hearing listed before me should not take place because, in a recent direction, I had disposed of a number of appeals which the Claimant sought to make. I had done so solely because I protect Roman Catholic and Zionist racist mafia of the Tribunals and Employers, and I should not hear this case which concerns the Labour Party/Zionist mafia.

“6.

In response, a letter was written on behalf of the Registrar indicating that the case would be constituted in front of me and an application would have to be made as a matter of urgency. On 26 September 2005, a letter was written by Council for Ethnic Minority to the President, and copied to the Lord Chancellor.

“7.

The letter, which extends for two pages, rehearses a complaint previously made against the President himself. It also deals with a complaint made against HH Judge Prophet, Judge Peter Clark, Judge Pugsley and myself who are said to be engaged in a defamatory campaign against the Claimant in open court. There is also strong criticism of Judge Serota QC and of a chairman of Tribunals at Manchester, Mr Leahy. The letter goes on to indicate that a complaint has been made to the Lord Chancellor about me, alleging unprofessional conduct and racial bias and hostility against Mr Deman. The principal basis is the finding against him in a number of matters pending before the EAT and in respect of an allegation that I accused him of picketing the EAT.

“8.

The solicitors on the record representing the Claimant, Hudgell & Partners, having been provided by the EAT with those two letters, written by Council for Ethnic Minority, made an application that it would be inappropriate for me to hear the application today. At that stage, the solicitors made clear that they were making no comment on any of the matters set out in the letters from Council for Ethnic Minority. On the basis of that, a letter was sent indicating that the Deputy Registrar had refused the application but it could be raised as a preliminary point at today’s hearing, as it has been.

“9.

Mr Davies, in one short submission, indicates without any comment upon the substance of the complaints to the Lord Chancellor, that while such a complaint is before the Lord Chancellor, I should not hear any application on behalf of the Claimant. He relies on Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2003] IRLR 538.

“10.

I also drew his attention to the judgment of Cox J in Breeze Benton Solicitors v Weddell UKEAT/0873/03. In that case, she considered whether a Chairman of Employment Tribunals should have recused himself in the light of, amongst other things, a complaint made to the Lord Chancellor about his conduct which was still pending. Her conclusion was that it was inappropriate for a number of reasons for the Chairman to have continued to hear the case and he should have recused himself. One of the matters, as found in paragraph 47 of her judgment was this.

‘Secondly, the very fact that Mr Reilly had complained about the Chairman’s conduct made it inappropriate that the Chairman should sit. The significance of the complaint lay in the fact that it had been made and that the Chairman knew that he had complained and was aware of the specific allegations made about his conduct’.

“11.

I have been made aware today of the complaint which is sought to be made against me. I understand that the complaint was made some time ago but while the Court of Appeal was seized of the matter, steps were no longer being taken. The Court of Appeal (para 1 above) refused leave to Mr Deman to appeal against my judgment and refusal to review it, dismissed his allegation of bias as totally without merit and imposed the civil restraint order. According to the letter, the complaint to the Lord Chancellor will now be re-activated; and so, I am in the same position as the Chairman in the Breeze Benton case.

“12.

It seems to me that given the very long procedural history of this case, if there is a possibility that the matter can be handled by another judge, it ought to be taken rather than any distraction be introduced into the merits of Mr Deman’s case by consideration of whether or not he is having a fair hearing. Because of the civil restraint order, if I were to direct that no further action be taken on this case at this Rule 3 hearing, I could not handle any application for leave to appeal and it would be the end of the road for Mr Deman’s claim. This case is at a very early stage and the only loser by vacating today proceedings, as Mr Davies points out, is Mr Deman himself, who will wait yet longer for a determination of the claims made originally 10 years ago.

“13.

I have paid careful attention to those three authorities which deal with apparent not actual bias. Mr Davies has stressed that he does not make his submission upon the allegations of actual bias set out by Council for Ethnic Minority. It is by reference to the test for apparent bias:

“… whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” (Porter v. Magill [2002] 2 AC 359, paragraph 103, per Lord Hope of Craighead)

“14.

It seems to me that no harm will be done by my standing aside from this case. The Claimant feels that justice may not be done but equally, it could be said, I suppose, by the Respondent that with a complaint by Mr Deman to the Lord Chancellor hanging over me, I might seek to demonstrate my fairness by finding in his favour when I would otherwise not. For both those reasons, therefore, it seems to me that Mr Davies’ application should be accepted. I acknowledge that I have had no help because this is a hearing where no respondent appears under the rules, nor have I had the assistance of an advocate of the Court. I make up my own mind, guided by those authorities and the brief submission made by Mr Davies.

“15.

I will now pass this case to the President to decide which judge should hear it. I note that a complaint has been made against Judge Clark and Judge Pugsley and Mr Davies tells me he would make the same application. So I will order this case to be heard before a judge which is not any of us. Mr Davies expressly volunteered, despite the terms of the letter from Council for Ethnic Minority, that no objection is taken to the President dealing further with Mr Deman’s matters, including this Rule 3(10) hearing.”

Finally, in paragraphs 27 and 28 of Burton J’s judgment he conducted the balancing exercise:

“27.

In this case, we must, as we stated in paragraph 10 above, look at what the position was when this application for recusal was made. There was an outstanding complaint (in the two letters, as in Breeze Benton, both to the Regional Chairman and to the Department of Constitutional Affairs), and in the Notice of Appeal, of bias and/or misconduct against Mr Kolanko as Chairman of the very recent 36-day hearing. Those allegations had not been, and could not be, until the hearing of the appeal which has only now taken place, resolved. What was necessary was to look at the nature of those allegations, and to see whether their making rendered it inappropriate for the case to proceed within the confines of the authorities to which we have referred. The nature of the allegations may, on occasion, be decisive, although it does not follow that, even if an allegation of wholly outrageous conduct, such as the taking of a bribe, were made, that that would necessarily qualify as a ground for recusal, if it was manifestly fanciful or unfounded. But the allegations in this case were in any event not of that kind. We have analysed them in detail in our first judgment, and found that they are without substance, but even at a time when they had not yet been adjudicated, it could be seen that they fell into the three categories which we have described in paragraph 31 of that judgment: criticism of the allegedly one-sided approach of the Chairman to the making of directions or orders, the conduct of the hearing and the control over leading questions and cross-examination, the exemplars being given amounting to a smattering of alleged occasions over a 36-day hearing, with "one of the clearest examples of apparent bias"being said to be that on one occasion, while Counsel for the Respondent was on his feet and it was intended to take a mid-morning break, it was at that Counsel that the Chairman nodded to indicate a suitable time to rise.”

“28.

We have no doubt whatever that the Regional Chairman was correct not to respond to the Appellant's application, prior to the hearing, to alter the Chairman, and to direct the Chairman to sit, and that the Chairman was correct to form his own conclusion that he was not obliged to recuse himself. The Appellant pointed out that two of the matters mentioned by Cox J in Breeze Bentonwere satisfied, namely the factual connection between the two hearings was similar, and the fact that little time had passed. However Amec makes clear that it may well make no difference even if the factual matrix of the two hearings is identical, and as for the passage of time, this is not a case, as in Lodwick, where any issue relating to the passage of time would be relevant. In our judgment, the existence of the complaints, and the nature of those complaints, did not render it necessary or appropriate that the Chairman should stand down or decline to hear the case; and there was nothing more (to import the Locabail and Lodwick enquiry).”

To add words of my own, to support those of Burton J is almost superfluous but I will just say first that if emphasis is needed to the point that a mere complaint cannot give rise to an automatic decision to recuse, then I unreservedly give that emphasis.

Second, Mr Ansar is undoubtedly right that it is the substance of the allegations which must be addressed and analysed. On the facts of this case, in my view, the initial decision taken by the Regional Chairman which related to a Directions Hearing was clearly correct. He very properly, as it would seem, to me took the view that the substance of the allegations did not require Mr Kolanko to recuse himself from a Directions Hearing and was very properly leaving over the question whether Mr Kolanko should deal with some future full hearing, by which time, of course, the appeal in the first proceedings would have come on and would have identified whether there was any substance in the allegations that were being made.

Thirdly, I would say this, that the only point which has made me pause for thought was the question whether, once the full Notice of Appeal was available, Mr Kolanko himself considered the fresh material. As I indicated when I read those paragraphs of Mr Kolanko’s decision, on one reading it could be said that he was simply following the Regional Chairman’s decision and not taking a decision himself, when there was fresh material available. But, Mr Ansar accepts that Mr Kolanko did take a decision on his fresh material, and that was the decision that he gave after lunch.

I should add that what I have no doubt about is that the decision of Mr Kolanko following the initial decision of the Regional Chairman to sit on the Directions Hearing, having reviewed the particulars by then contained in the Notice of Appeal, was itself unimpeachable.

These allegations were of the very kind where the Chairman was entitled to believe that he could act fairly on the hearing he was dealing with, and should not take the view that any fair-minded observer would think that there was any real possibility that he could not. In my view this appeal should be dismissed.

LORD JUSTICE LAWS: I agree that this appeal should be dismissed for all the reasons given by my Lord, Lord Justice Waller.

LORD JUSTICE LEVESON: I also agree.