Dwr Cymru Cyfyngedig v Albion Water & Ors

Last Friday on 11 January the court considered an application by letter dated 10 January from Wilmer Hale, on behalf of the appellant, seeking a direction that Richards LJ should recuse himself from the substantive hearing of this appeal, which is due to start today. The court refused the application in writing and said that it would give its reasons today. These are the reasons which led me to the conclusion that the application should be refused.

Richards LJ became involved in this appeal in this way, which is not quite accurately set out in the letter from Wilmer Hale, no doubt because they were not correctly informed of the position. I received the papers in the appeal shortly before Christmas. The constitution which was due to hear the appeal comprised Longmore LJ, Moses LJ and myself. When I looked at the papers, albeit briefly, it seemed to me that it would be desirable, to put it no higher, that the court should include someone with experience of competition law. I formed the view, rightly or wrongly, that none of us had specialist experience of the kind which I thought desirable.

On making inquiries I ascertained that Richards LJ had relevant specialist experience and concluded that it would be desirable, if possible, to substitute him for one of us. I ascertained that he was due to sit in the Court of Appeal Criminal Division but that it would be possible for him to swap with Moses LJ. I therefore made arrangements to that end after speaking to Richards LJ. He told me that he had considered the papers at the permission stage and refused permission to appeal but that he could see no reason why he should not sit. I was of course aware of the decision and reasoning of this court in Sengupta v Holmes [2002] EWCA Civ 1104, to which I will return in a moment, and I agreed.

In the course of last week when I was considering the papers in the appeal I noticed that when the court, which then comprised Rix LJ and Thomas LJ, gave permission to appeal on 26 July it directed that:

In Wilmer Hale's letter they note the following: (i) that Richards LJ considered the application for permission to appeal and "in a fully reasoned decision" refused permission; (ii) that on a renewed application before Rix LJ and Thomas LJ permission to appeal was granted; and (iii) that although this court has accepted that in an "ordinary case" a judge who has refused permission to appeal is entitled to sit as a member of the court hearing the substantive appeal, there are three particular features of the present case which demonstrate that Richards LJ should recuse himself as follows: (a) that having plainly considered the application for permission with a great deal of care and attention, he gave quite lengthy and detailed reasons refusing permission; (b) that the respondent relies upon that fact, noting that both Sir Christopher Bellamy QC, who was of course the Chairman of the Competition Appeal Tribunal ("the CAT"), and Richards LJ were "highly experienced judges of great eminence in the field of competition law"; and (c) that neither of the other members of the court (viz Longmore LJ and myself) has the same experience in a highly specialised area of law that comes to the Court of Appeal infrequently and "therefore it may be expected that his views may carry particular weight within the court".

Wilmer Hale submit that these features mean that the requirement of "objective" impartiality as seen by a fair-minded and informed observer is not met here and that Richards LJ should be recused and replaced by another Lord Justice, perhaps Moses LJ.

The application is not supported by the respondent or the interested parties. Pinsent Masons, on behalf of the Water Services Regulation Authority ("the Authority"), simply states that it is a matter for the court. Mr Thompson QC, for the respondent, made some short points in a letter dated 10 January 2008 to the effect that there has already been extensive delay in resolving this matter since 2001, that the court's view is contained in Sengupta v Holmes, both at common law and under Article 6 of the European Convention on Human Rights, and that the respondent does not itself consider that this is a case for recusal.

It is now well settled that the role of the court considering an application of this kind is to ascertain the relevant circumstances and to ask whether those circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility that the tribunal, or relevant member of it, is biased (see for example Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 per Lord Hope at paragraphs 102 and 103). As applied to the circumstances here, it appears to me that the question is whether a fair-minded and informed observer would conclude that there is a real possibility that because of the conclusion he reached on the application for permission to appeal Richards LJ might not reach an objective conclusion based on the argument in the appeal but might determine the appeal against the appellant, in short, that he might have a closed mind (see Sengupta v Holmes at paragraphs 30 to 31).

In considering that question in the present context we must have in mind the approach that the court has adopted in general in the case of a member of the court who has previous refused permission to appeal on paper. In Sengupta v Holmes this court considered the problem in some detail with the assistance of an advocate to the court so that it could be fully analysed. As a result the court referred to a considerable number of cases, which included domestic cases, Australian cases and Strasbourg cases (see paragraphs 8 to 25). The court accepted that there will be some circumstances in which it might reasonably be feared that a judge has prejudged the issue and that he cannot or will not revisit the issue with an open mind (see at paragraphs 31 to 34).

Examples are where a judge of first instance has committed himself to a view of the facts which he himself had the responsibility to decide, or where he had decided that a party or witness was a crook or a rogue and where he might not conscientiously be able to put himself back into a state of mind where he has no preconceptions about the merits of the case, or where a judge has expressed a preliminary view, as Laws LJ put it at paragraph 34:

Laws LJ described "the ordinary case" in this way at paragraphs 35 to 36:

As stated earlier, the appellant accepts that this court has approached the ordinary case in that way, but submits that this is not an ordinary case for the three reasons given in the letter. I consider each in turn.

As to the first, it is true that the reasons given by Richards LJ show that he considered the application with care. However, I would expect every member of the court to consider such applications with care. How long or short the reasons given are will depend of course upon the nature of the case and the choice of the member of the court concerned. Some write longer reasons than others. The length or brevity with which the reasons are expressed is to my mind irrelevant. In my judgment, this feature does not single out this case as being in any way out of the ordinary. In any event the reason why Richards LJ's reasons are quite lengthy is that the appellant at that time was challenging large parts of the CAT's reasoning. The position now is different. Permission to appeal was granted on two discrete issues of law as follows: (i) what is the correct test for finding a "margin squeeze" under Article 82 of the EC Treaty and Chapter 2 of the Competition Act 1988; and (ii) the jurisdiction of the CAT to decide the issue of dominance. Much of Richards LJ's reasoning was focused on other issues, including the issue of whether the CAT applied the legal test correctly. That issue is no longer live.

On the first or correct test point, Richards LJ simply said that the CAT gave valid reasons why the legal test is not as limited as the appellant asserts. The question is whether in the light of that conclusion, permission having been given by Rix LJ and Thomas LJ, a fair-minded and informed observer would conclude that there is a real possibility that Richards LJ might not consider the issues in the appeal in an entirely fair-minded way. In my opinion there is no such risk, essentially for the reasons given by Laws LJ at the end of paragraph 36 in Sengupta v Holmes, which I have quoted.

It is for this reason that if, as often happens, a member of the court who has refused permission to appeal sits on a renewed application for permission made orally, whether sitting by himself or herself or with another member of the court, it is accepted that there is no such risk. If that is so, as Keene LJ put it at paragraph 46 in Sengupta v Holmes, how can it be that a judge who refuses permission on the papers and then has no further contact with the case until the substantive hearing is to be seen as having a closed mind and lacking the requisite impartiality? I agree with Keene LJ that the answer is that it cannot, at any rate in the absence of very unusual circumstances.

There are no such unusual circumstances on the facts of this case. Richards LJ simply expressed a view on the papers without the benefit of oral argument. Since then the parties have lodged further skeleton arguments, we have the benefit of written submissions on behalf of the Authority, the OFT and OFWAT and there is to be oral argument by leading counsel on both sides. I have no doubt that, true to the judicial oath, Richards LJ will consider all relevant material and arguments before reaching a conclusion on the issues in the appeal. In these circumstances I would reject the first basis upon which it is said that this is not an "ordinary case".

I take the other two bases together. The suggestion is that because Richards LJ is a:

However that may be, having rejected the first basis for suggesting that this is not in this respect an ordinary case, it follows that there is no risk of Richards LJ forming or expressing a view which either is, or which the fair-minded and informed observer might think is, tainted by bias. It further follows that there is no risk of his having undue influence within the court (my emphasis).

In conclusion, whilst this is an unusual case because it is a competition case of the kind which rarely comes before this court, it is not an unusual case so far as the principles relevant to this application are concerned. It was for these reasons that I concluded that there was no basis upon which the court should accede to the application that Richards LJ should be recused and that it should be refused.

I should add that I reached these conclusions independently but, having done so, discussed them with both Longmore LJ and Richards LJ, each of whom I understand to take the same view.

LORD JUSTICE LONGMORE: I agree and only add that if the written application for permission to appeal had been as focused and precise as the renewed oral application in due course became, permission to appeal might in fact have been given. It is the value of an oral hearing that it does enable the truly important issues in a case to emerge when they may not have done in the welter of paper that so often accompanies written applications to this court.

LORD JUSTICE RICHARDS: I also agree and for the reasons given none of the parties need have any concerns about my sitting on this appeal.