Broughal v Walsh Brothers Builders Ltd & Anor

This is an appeal from an order of HH Judge Baucher made in the Central London County Court on 7 March 2017. The judge dismissed an appeal by the claimant, Mr Broughal, against an earlier order of Deputy District Judge Ghallingham dated 1 August 2016 refusing relief from sanctions and assessing at nil Mr Broughal’s claim for damages for personal injury. Permission was granted for a second appeal by Lewison LJ on the sole ground that because Judge Baucher had earlier refused Mr Broughal permission to appeal on the papers (permission having subsequently been granted at an oral hearing by a different judge), the hearing by her of the substantive appeal gave rise to an appearance of bias which justifies the setting aside of her order and a direction for the appeal to be re-heard in front of a different judge. This is the first occasion on which the Court of Appeal has been asked to consider the possibility of apparent bias in relation to an appeal heard by a single judge. This court did, however, decide in Sengupta v Holmes [2002] EWCA Civ 1104 and Dwr Cymru Cyfyngedig v Albion Water [2008] EWCA Civ 536 that the inclusion in a constitution of three judges of the Lord or Lady Justice of Appeal who had earlier refused permission to appeal on a consideration of the papers did not require that member of the court to recuse himself on grounds of apparent bias or constitute grounds for an appeal against the subsequent decision in the event that he failed to do so.

I can summarise the background facts quite briefly. In 2011 the claimant was injured whilst at work. In 2014 he commenced proceedings for damages against his employers but later that year the company was struck off the register and dissolved. The action has continued against its insurers. At a CMC on 26 January 2016 District Judge Lightman ordered the parties to give standard disclosure by list and directed that the claimant was to be at liberty to provide disclosure of his medical records by providing Zurich with signed mandates for the release of the relevant medical records by 19 February 2016.

The claimant failed to provide disclosure or inspection of his medical records despite repeated requests made to his solicitors and the matter was restored for hearing before District Judge Lightman on 14 April 2016. By paragraph 5 of his order he ordered the claimant “to provide to the Second Defendant five original signed and dated mandates for the release of his hospital and GP records” by 12 noon on 4 May 2016. In default the claim for damages was to stand assessed at nil.

Zurich’s solicitors, Clyde & Co., complained that they did not receive the original mandates as ordered. Instead, at 12.48 on 4 May they received an e-mail enclosing five “consent” forms signed by the claimant and his solicitors which authorised the release of medical notes to the claimant’s solicitors (Dotcom Solicitors) but not to Zurich. Clyde & Co indicated in correspondence that they regarded the claimant as being in breach of the order of 14 April 2016 and on 16 May 2016 the claimant issued an application for relief from sanctions.

This was heard by Deputy District Judge Ghallingham on 1 August 2016. At the hearing the claimant’s counsel appears to have accepted that there had been a breach of the order of 14 April because no original mandates entitling Zurich to obtain the relevant medical records were ever sent to or received by them. The judge considered that the breach of the order was serious given the proximity to the trial some four months ahead. The order had still not been complied with so it was almost inevitable that the trial date would be lost. He refused relief from sanctions and made an order assessing the damages at nil. He refused permission to appeal.

On 15 August the claimant filed two appellant’s notices (1) seeking permission to appeal against the order of 1 August and (2) by separate notice seeking permission to appeal out of time against the order of District Judge Lightman of 14 April. As one of the grounds of appeal in relation to the 1 August order the claimant contended that on the true construction of paragraph 5 of the order of District Judge Lightman of 14 April there had been no breach but that in any event the Deputy District Judge was wrong, in the light of all the relevant circumstances, to exercise his discretion by refusing to grant relief from sanctions.

On 15 September 2016 the applications were considered and refused on the papers by Judge Baucher. Because it is relevant to the argument about apparent bias, it is necessary to set out verbatim paragraph 2 of her order (which relates to the order of 1 August):

“Permission to appeal the order of 1^st August is refused on the grounds there is no real prospect of success nor any other compelling reason why an appeal should be heard CPR 52.3(6)(a)&(b). The Appellant accepted in the court below he was in breach of the order dated 19^th April. On appeal that is not accepted. There is no explanation for the change in position. The District Judge applied the three stage approach in Denton and his decision was one he was entitled to make. There is no basis to interfere with that decision.”

She also refused permission to appeal against the 14 April order simply because no proper reasons were given for the application being out of time.

The claimant then exercised his right under what was then CPR 52.3(4) (see now CPR 52.4(2)) to have the matter reconsidered at an oral hearing. This took place on 25 November 2016 before HH Judge Saggerson. It is clear from his judgement that he gave permission to appeal both in relation to the construction and effect of paragraph 5 of District Judge Lightman’s order and more generally in relation to how Deputy District Judge Ghallingham had exercised his discretion. But it is equally clear that permission to appeal was only applied for and granted by Judge Saggerson in respect of the Deputy District Judge’s order of 1 August 2016 and not in respect of the earlier order of 14 April.

The substantive hearing of the claimant’s appeal took place before Judge Baucher on 6 March 2017. At the start of the hearing Mr Engelman, counsel for Mr Broughal, made an application for the judge to recuse herself on the ground of apparent bias based on her having dealt with and refused permission to appeal on a consideration of the papers. The judge referred to a passage in the 2016 edition of the White Book at 52.3.18 which was a note based on the Court of Appeal’s decision in Sengupta and she refused the application. She explained that, after being notified by telephone of the possibility of the application being made, she had made enquiries as to whether the appeal could be heard by another judge but, due to problems caused by illness, no other judge was available. Having considered whether the fair-minded and informed observer would take the view that her previous involvement in the appeal might create a real possibility of bias, she concluded that it would not.

The hearing of the appeal then proceeded. Mr Engelman attempted to persuade the judge that he had permission to appeal not only the order of 1 August 2016 but also the earlier order of District Judge Lightman. The judge rejected this and was clearly right to do so. It is apparent from the order made by Judge Saggerson on 25 November 2016 that permission to appeal had only been granted in respect of the order of 1 August. The judge heard argument both about the construction of paragraph 5 of the 14 April order and more generally about the way in which Deputy District Judge Ghallingham had approached the issue of relief from sanctions. The judge then delivered a detailed and careful judgment in which she indicated that she would not have been minded to allow Mr Engelman to resile from the concession he had made before the Deputy District Judge on 1 August not least because the concession was rightly made. Paragraph 5 of the order of 14 April required the claimant to provide original mandates which would allow Zurich to obtain his medical records. He had not done this. In relation to the refusal by Deputy District Judge Ghallingham to grant relief from sanctions, the judge said that the breach of the 14 April order was serious; that there were no good reasons which could excuse that; and that the Deputy District Judge had taken all relevant matters into account in deciding how to exercise his discretion under CPR 3.9. There were therefore no grounds for interfering with the order which he had made.

None of this is challenged on this appeal. Mr Al Mustakim who appears for Mr Broughal on this occasion has not sought to argue that the judge’s reasoning discloses any error of principle or is other than a straightforward application of established principles in relation to the review of the exercise of a judicial discretion. Nor is it or could it be suggested that the judge displayed anything approaching hostility or a closed mind in the way in which she dealt with Mr Engelman’s submissions at the appeal hearing. We have been provided with a transcript of the hearing from which it is clear that the judge listened to and engaged with counsel’s submissions in the usual way and Mr Engelman was both allowed to and encouraged to develop his argument in response to the judge’s questions.

The sole ground of appeal is that having originally refused permission to appeal Judge Baucher would be taken by the informed observer to have approached the appeal hearing with a predisposition towards dismissing the appeal either because she had closed her mind to the appellant’s case or because she would have been inclined (whether consciously or unconsciously) towards reaching a conclusion that was consistent with her earlier order.

To support this, Mr Al Mustakim drew attention to paragraph 2 of the judge’s order quoted above and to the statement in it that permission was refused because the appeal had no real prospect of success. This is, of course, the language of what is now CPR 52.6(1) and the test which the judge was required to apply when considering whether to grant permission to appeal. But Mr Al Mustakim submitted that the use of this language both in tone and in substance must be taken as indicating that the judge has formed the view that the grounds of appeal are not sufficient even to qualify for permission to appeal. This would appear even to the informed observer to make it a real possibility that the judge has formed such an adverse view about the appeal as to be unable to approach the substantive hearing with an open mind.

In refusing to recuse herself, the judge said this:

“2.

This very point is raised by the learned editors of the White Book at 52.3.18, page 1680 of the 2016 edition, where they lend support to the practical problems if circuit judges were precluded from hearing substantive appeals in cases where they had initially refused permission on paper, the practical problems being that there are going to be very few other judges available to hear such an application. There is at this moment in time a chronic shortage of civil judges and that word “chronic” is out of the mouth of the Lord Chief. Recorders as a matter of course do not hear appeals. I had even taken the precaution today once that telephone call had been made to see if there was any possibility of work being transferred or any other judge being available and the list office have advised that there is no such judge and, further, matters have been compounded by a judge being ill and therefore unavailable and the urgent judge having to be allocated to hear another matter.

3.

I have set out my reasons for refusing appeal on paper, as I am required to do. There is no good reason at all for me not to hear this appeal, there is no apparent bias and, in my view, there is no real possibility of bias. I ask myself the rhetorical questions what would the appellant’s position have been had this matter been listed before His Honour Judge Saggerson? Again, it shows that we cannot have litigants hand-picking their court and their venue. It follows, therefore, the application is refused.”

Mr Al Mustakim also submits that insofar as the judge based her decision on questions of administrative convenience, she was wrong to do so. The right of every litigant to have their case heard before an impartial and unbiased tribunal is a fundamental principle in the administration of justice which is not open to compromise on those grounds.

The starting point has to be the acceptance of that general proposition. It is common ground that a judge must be independent of the parties and impartial both in order to do justice in the given case and to maintain public confidence in the judicial system. Questions of administrative convenience are irrelevant. A judge takes an oath to administer justice without fear or favour and must conduct himself accordingly. To that end, the court will set aside not only decisions where actual bias can be demonstrated but also those where the circumstances looked at objectively lead to a reasonable apprehension that the judge might not have acted impartially regardless of whether in fact this was the case. Legal literature is replete with references to the requirement that justice should not only be done but also be seen to be done but the test which is now applied in this jurisdiction to determine cases of apparent bias is more nuanced than that. It utilises a legal construct of the fair-minded and informed observer to determine whether through his notional eyes it would appear that there was a real possibility of bias. Although the test is a constant one, the result of its application will inevitably differ according to the circumstances of each case. In particular, it will be important to identify what information the fair-minded observer is deemed to take into account in balancing the risks of a pre-determined outcome against the assumed impartiality and training of the judge.

In terms of the general principle involved, it is convenient to begin with the decision of this court in Locabail (UK) Ltd v Bayfield Properties Limited [2000] QB 451. The Court of Appeal heard appeals in five cases in which the decision of the court below was challenged on the ground of apparent bias. In one case the judge was a partner in a large firm of solicitors which was instructed in proceedings brought by unconnected parties against the husband of one of the defendants. In another case the allegation of bias was based on articles which the deputy judge (a member of the Bar) had written in the past. The other cases were concerned with connections based on previous employment and the ownership of shares in a property company which was the landlord of one of the affected parties. The Court of Appeal confirmed that where the judge had a direct personal interest in the outcome of the litigation he was automatically disqualified. But, absent this, issues of apparent bias based on more tenuous connections with the subject matter of the litigation or the parties called for the adoption of a broad, objective approach based on a knowledge of all relevant facts and an assessment of whether there was a real danger of bias.

We are not concerned on this appeal with the problems sometimes created by a link between the judge and the case he is trying based on some professional or other involvement whether personal or through some connected person. As already explained, the focus of the present appeal is on the ability of the judge who has already made a decision adverse to the appellant to approach the substantive hearing under review in an impartial way. In its judgment in Locabail the Court of Appeal approved a passage from the judgment of the Constitutional Court of South Africa in President of the Republic of South Africa v South African Rugby Football Union, 1999 (4) S.A. 147 at page 177 where that court said:

“It follows from the foregoing that the correct approach to this application for the recusal of members of this court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

Of particular relevance to the issues in the present appeal is the consideration in Locabail of what circumstances are likely to give rise to a real danger of bias. Having rejected as too tenuous links based on such matters as religion, ethnic or national origin, gender, age or class, the Court of Appeal turned to consider cases like the present one where the judge has had some previous involvement as a judge:

“By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if 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 if, in a case where the credibility of any individual were an issue to be decided by the judge, he 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 if 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 his ability to try the issue with an objective judicial mind (see Vakauta v. Kelly (1989) 167 C.L.R. 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. 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 more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal.”

In Australia the antidote to possible bias comprised by the judge’s oath, training and experience has been examined more critically. In Southern Equities Corporation Limited (in Liquidation) v Bond [2000] SASC 450, a decision of the Supreme Court of South Australia, the Court emphasised that the notional fair-minded observer was a lay person and not a lawyer. Bleby J at [126] said:

“But the judge deciding an apprehended bias claim is not and never can be a lay observer. In order to determine the likely attitude of a fair-minded lay observer, the judge must be clothed with the mantle of someone the judge is not. One must avoid the natural temptation to view the judicial conduct, state of knowledge, association or interest in question through the eyes of a professional judge. An apprehension of bias by pre-judgment is based on a perception of human weakness. Given the double use of "might" in the current formulation of the test for apprehended bias, one must be particularly careful not to attribute to the lay observer judicial qualities of discernment, detachment and objectivity which judges take for granted in each other.”

Reference was made to a passage from the judgment of Kirby J in Johnson v Johnson [2000] 174 ALR 655 where he said:

“44.

Older authorities contain statements about the asserted special capacity of adjudicators, especially judges, because of their training and experience, to bring a detached mind to the task in hand whatever their earlier stated opinions might suggest. It was on this basis that the old rules requiring affirmative proof of a "real danger" of bias were stated. Part of the reason for the eventual retreat from this approach is undoubtedly the growing inclination of parties to litigation, and also many members of the public, to regard such assertions with scepticism. To some extent, this change of attitude may be a product of higher levels of education and social awareness. In part, it may reflect public attitudes to all institutions, especially where claims are made based on unproved assertions by those affected. In part, it may be a consequence of the growth in the judiciary and other adjudicative bodies and the greater willingness of members of the legal profession to challenge things that once would have been left alone.

…..

53.

The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”

The decision in Johnson v Johnson was considered by the House of Lords in Helow v Secretary of State for the Home Department [2008] UKHL 62 where an application for the review of a decision to refuse asylum to a Palestinian national was dismissed by a judge (Lady Cosgrove) who was a member of the International Association of Jewish Lawyers and Jurists whose magazine had in the past contained articles of an extreme pro-Zionist kind. The claim that this created a real possibility of bias on the part of the judge was rejected by the House of Lords. In his speech Lord Hope of Craighead said:

“[2] The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

[3] Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”

The skeleton argument for the claimant on this appeal includes a submission that the balance of modern authority supports the need to discount the professional training of the judge on the twin grounds of public confidence and unconscious bias. As a general proposition, I do not accept that. Even the Australian decisions do not go that far. There is undoubtedly a need for the Court, in assuming the mantle of the fair-minded observer, to bear in mind that he is not a judge and therefore to take perhaps a more critical or questioning view of the degree to which the judge’s training and professional objectivity would operate in the particular circumstances of the case. But the latter remain an obvious and important factor in the assessment which the lay observer will make as the decision in Helow illustrates.

In Jiminez v London Borough of Southwark [2003] EWCA Civ 502 the claimant brought proceedings against the council, his former employer, alleging unfair discrimination under the Disability Discrimination Act. After 13 days of hearing but before the conclusion of the evidence the chairman of the Employment Tribunal invited counsel to a meeting at which the Tribunal expressed its preliminary views about the case including saying that they considered that the council had treated Mr Jiminez appallingly. The meeting was an attempt to broker a settlement but the case did not settle and at the conclusion of the hearing the Tribunal found in the claimant’s favour. The EAT set the decision aside for apparent bias on the ground that their “preliminary” views were so strongly expressed that they indicated that the Tribunal had reached a fixed and adverse view about the council’s conduct. The Court of Appeal restored the decision of the Employment Tribunal. It held that the preliminary views, although expressed in strong terms, did not go so far as to indicate that the Tribunal had formed a concluded view about the claim in advance of hearing the parties’ final submissions. At [38] Peter Gibson LJ said:

“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.”

Another employment case which fell on the other side of the line is Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330. In this case a surgeon brought proceedings for unfair dismissal against the NHS Trust. He said that he had been dismissed for being a whistle-blower. The Trust contended that the claim was totally without merit and sought the payment of a deposit by the claimant which the tribunal could order under its rules in cases which had “little prospect of success”. A failure to pay the deposit could result in the claim being struck out.

Following a hearing before the chair of the Employment Tribunal, a document described as a judgment was handed down which stated that:

“I am of the opinion that the claim not merely has 'little prospect of success' but that it has no reasonable prospect of success for the following reasons.”

The claimant lodged an appeal with the EAT but before any hearing could take place there was a further hearing in the Tribunal at which the reference to the earlier document being a judgment was deleted as a clerical error but the claim was struck out as having no reasonable prospect of success. The claimant lodged a further appeal against this order and the EAT set it aside as having been vitiated by apparent bias on the basis that the earlier “judgment” recorded what amounted to a concluded view about the claim which made an impartial hearing of the strike-out application impossible. The decision of the EAT was upheld by the Court of Appeal. Maurice Kay LJ said (at [18]):

“Even after the label “judgment” has been removed from the document of 20 July 2005, it is on its face plainly and unequivocally suffused with a concluded view as to Mr Ezsias's prospects of success. It begins with the expression of an opinion that Mr Ezsias's contentions “have no reasonable prospect of success”. Although the only matter receiving immediate attention at the time was the application for a deposit which is governed by the weaker test of “little prospect of success”, the chair proceeded to say of the whistleblowing claim that she was of the opinion that it had “no reasonable prospect of success”. The word “no” was underlined for emphasis by the chair herself. Her final observation on this aspect of the case was as I have already set out above. As I have set out, she went on to express herself in similar terms in relation to what I would call the more conventional unfair dismissal claim. I shall say no more about that because it is common ground that for present purposes it stands or falls with the whistleblowing claim.”

Then, after referring to the decision in Jiminez, he went on:

“[23] In my judgment the present case falls clearly on the other side of the line. What the chair said in the document of 20 July 2005 was not said at the time to be a provisional or preliminary view. On the contrary, it was clearly stated in concluded terms. What she later said to the Employment Appeal Tribunal by way of explanation was, in the view of Elias J, enough to acquit her of actual pre-determination but it did not and could not displace the perception which any fair minded and informed observer would have formed, namely that there was a real possibility that she had a concluded view or a closed mind as regards Mr Ezsias's prospect of success. Elias J put it in this way:”

“Any fair minded and informed observer would in my view have considered that to put it at its lowest there was very little prospect that the Appellant would be able to shift her from her view. I do not think that her comments at the second hearing would sufficiently have dispelled that impression.””

The claimant relies on this decision as supporting his case that the way in which Judge Baucher expressed herself would be interpreted by the fair-minded observer as indicating that she had reached a concluded view about the merits of his appeal which was unlikely to be displaced by further argument. Mr DuCann, for Zurich, says that we should treat it as simply another application of the approach taken in Jiminez and, before that, in Locabail which on the particular facts of that case produced a different result. Much turned on the fact that the tribunal chair had underlined the word “no” in the earlier document whereas Judge Baucher did no more than to set out the CPR 52 test.

Before I turn to those submissions I need to complete my summary of the authorities by considering the two cases in which the principles governing apparent bias have come to be considered in relation to a judge who has previously refused permission to appeal. In Sengupta Laws LJ had refused permission to appeal on a consideration of the papers but went on to preside in a constitution of three Lord Justices which heard the substantive appeal after permission had been granted by a court comprised of two different judges at a renewed oral hearing. Except in cases where the application for permission was certified as being totally without merit, an appellant who was refused permission on paper had at that time an unqualified right under CPR 52.3(4) to request the decision to be re-considered at an oral hearing but the rules did not require that hearing to take place before a different judge. That was a matter for the court although it was not uncommon for a different judge to be assigned to conduct the oral hearing and the judge who had dealt with the matter on paper could give a direction to that effect. In the case of the Court of Appeal, the rules have now changed in relation to applications for permission to appeal filed after 3 October 2016. Under the present version of CPR 52 an application to the Court of Appeal for permission to appeal is to be considered on the papers unless the judge otherwise directs: see CPR 52.5. If the judge refuses the application on a consideration of the papers the applicant has no right to have the matter re-considered at an oral hearing. The paper decision is final. In relation, however, to appeals to the County Court and to the High Court (which in each case will involve a single judge), the old procedure continues to apply and a disappointed applicant may still request the matter to be re-considered at an oral hearing as occurred in this case: see CPR 52.4.

In Sengupta the proceedings had been brought for judicial review to quash a decision of the General Medical Council that a complaint against Dr Sengupta should not proceed. The decision was quashed in the Administrative Court and Dr Sengupta, as an interested party, sought permission to appeal. Permission was refused by Laws LJ on the papers but then granted at an oral hearing. At the commencement of the full appeal counsel for Dr Sengupta applied for Laws LJ to recuse himself because he had previously refused permission to appeal and there was therefore a real danger of bias if he continued to hear the appeal. It was not suggested that anything turned on the particular way in which Laws LJ had dealt with the permission application. The issue was treated as one of general principle which would arise in every case where the constitution included a judge who had previously refused permission.

In his judgment Laws LJ referred to the passages from the Australian decisions quoted earlier in conjunction with the domestic and Strasbourg authorities. He accepted (consistently with what was said in Locabail) that where, for example, a judge had heard earlier evidence and had reached and expressed a conclusion on factual matters in dispute in the litigation it would be impossible for him to participate in a subsequent appeal. Similarly, there could be cases where the judge has expressed himself in such extreme or intemperate language in making a preliminary decision that any reasonable person would regard him as disqualified from taking a fair view of the case at a later hearing. Ezsias would be an example of this. However, in relation to what he described as the ordinary case, Laws said this:

“35.

But the ordinary case is far from those instances. It is of the kind that has happened here: the judge in question has not himself had to resolve the case's factual merits, and has not expressed himself incontinently. All he has done is to conclude on the material before him that the result arrived at in the court below was correct. And he has done so in the knowledge that, at the option of the applicant, his view may be reconsidered at an oral hearing. In such a case is there a reasonable basis for supposing that he may not bring an open mind to bear on the substantive appeal if, after permission granted by another judge, he is a member of the court constituted to deal with it?

36.

I consider, in line with a submission made by Mr Pollock, that an affirmative answer to this question would travel beyond whatever is the perception of our courts and judges that may be entertained by the fair-minded and informed observer, whoever he may be. It is not only lawyers and judges who in various states of affairs may be invited — they may invite themselves — to change their minds. Absent special circumstances a readiness to change one's mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis. It is surely a commonplace of all the professions, indeed of the experience of all thinking men and women.

(6)

Who is the fair-minded and informed observer?

37.

Our fair-minded and informed observer must surely have these matters in mind. That does not turn him into a notional lawyer. It merely reflects his fair-mindedness. However much we may in the name of public confidence be prepared to clothe our observer with a veil of ignorance, surely we should not attribute to him so pessimistic a view of his fellow-man's own fair-mindedness as to make him suppose that the latter cannot or may not change his mind when faced with a rational basis for doing so. That is, I think, what this case involves: not merely the ascription to the notional bystander of a putative opinion about the thought-processes of a judge, but the ascription of a view about how any thinking, reasonable person might conduct himself or herself when, in a professional setting, he or she is asked to depart from an earlier expressed opinion. The view which Miss O'Rourke submits should be ascribed to the bystander does much less than justice, I think, to the ordinary capacities of such a person. In my judgment, therefore, it is not a view which the fair-minded and informed observer would entertain.”

Keene LJ took the same view. In relation to the decision taken by the single judge at the permission stage, he said:

“45.

However, on further consideration I have concluded that the nature of the decision being made by the single Lord Justice at that stage is sufficiently different from that required on the hearing of the substantive appeal for any allegation of an appearance of bias to be seen as unfounded. When making a decision on the papers whether or not to grant permission to appeal, the single Lord Justice is well aware that, though his decision may prove to be final, there exists the opportunity for the applicant to renew his application orally in open court. In other words, if the decision on the papers is not accepted, it can be reconsidered. In that sense, it remains, despite the change in the wording of the procedural rules, a potentially provisional decision.

46.

This is borne out by the fact that none of the parties appearing before us on this application seeks to suggest that the same judge should not hear the oral argument on any renewed application for permission to appeal. This is a recognition that he is to be seen objectively as still having a sufficiently open mind at that stage to be able to act impartially. If that is so, then 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 appeal hearing is to be seen as having a closed mind and lacking the requisite impartiality?

47.

One important factor which exists both at a renewed application hearing and at a substantive appeal hearing is the benefit enjoyed by the court of listening to oral argument. This is a fundamental part of our system of justice and it is a process which as a matter of common experience can be markedly more effective than written argument. It will be evident from what has been said earlier in this judgment that, before hearing oral argument in this case, I had some considerable sympathy for the applicant's arguments. The process of oral debate has persuaded me that those arguments are unsound. I mention this simply as one example of the impact which oral submissions may have under our system on the decision-making process. Yet it is a feature absent from the process by which the decision by the single judge on the papers is arrived at. This too seems to me to be a significant distinction between that decision and the subsequent one which the full court is called upon to make on the substantive appeal.

48.

I am conscious that in stressing these differences I am drawing on my own experience as a judge, whereas one is concerned for present purposes with the way in which a fair-minded and informed observer would regard these procedures. It is not easy for a professional judge to put himself or herself in the position of an ordinary litigant or member of the public who does not possess such insight into and experience of the judicial decision-making process. Yet that is what has to be done if proper regard is to be had for the need to maintain public confidence in our procedures. However, the application before us postulates that the fair-minded and informed observer knows of the refusal of permission on the papers, since that is the very foundation of the allegation of bias. Such an observer must also be taken to know that such a refusal is not the end of the road, because the matter has progressed to a full appeal hearing, and it is therefore to be assumed that an observer who is indeed “informed” is conscious of the sequence of procedures between the initial lodging of the written Appellant's Notice seeking permission to appeal and the substantive appeal hearing. That degree of knowledge is sufficient for him to conclude that there is no real possibility of bias, because it is the existence and nature of those procedural stages which, to my mind, lead properly to the conclusion that the judge in question still retains an open mind at the substantive appeal hearing. An uninformed observer might think differently, but no system can guard itself against criticism by the uninformed, nor does it need to adapt itself in what would be a vain attempt to deflect such criticism.”

These judgments were approved and followed in Dwr Cymru Cyfyngedig.

It is, I think, significant that the challenge to the involvement of Laws LJ (and in Dwr Cymru Cyfyngedig to that of Richards LJ) at the full appeal hearing was not rejected in either case on the basis that the judge in question would be part of a constitution of three judges. The impact which the judge’s previous involvement would have in the eyes of a fair-minded observer was considered on the premise that if his own participation was, so to speak, tainted or precluded by his previous involvement then that would undermine the decision taken on the substantive appeal. The decision in Sengupta is therefore binding authority in my view for the proposition that the prior involvement of a judge at the permission stage involving a consideration of the papers does not disqualify that judge from hearing the substantive appeal (or, for that matter, an oral renewal of the application) unless the judge has expressed his views in such a way as to indicate to any fair-minded lay observer that he has reached a concluded view and is unlikely to be open to further argument. Many of these cases will be highly fact-sensitive and will not necessarily involve the use of extreme language or behaviour as Ezsias illustrates. But they will all be cases in which it will be readily apparent from a consideration of all the relevant facts and surrounding circumstances including the nature of the claim that the judge appears to have come to a fixed and concluded view on the merits. These cases are by their very nature likely to be rare. There is certainly nothing inherent in the process which is inimical to the possibility of a fair oral hearing by the judge who has made the paper decision. The test for granting permission imposed by CPR 52 (does the appeal have a real prospect of success?) does of course mean that the judge who refuses permission will have concluded that the grounds of appeal are not sufficient even to qualify as seriously arguable. For the purposes of granting permission, it is not necessary to consider that the appeal is likely to succeed. But, for the reasons given by Keene LJ in Sengupta, that is not enough in itself to disqualify the judge from hearing the appeal. With the benefit of oral argument, the judge will be open to being persuaded that his or her initial view was wrong. This is an everyday feature of litigation both at first instance and in the Court of Appeal.

In the present case Judge Baucher did no more than to indicate in her order of 15 September that from a consideration of the papers the appeal would have no real prospect of success and that there was no other compelling reason to grant permission. That was the test she was required to apply but there is nothing in the terms of her decision to indicate that she would not be open to further argument and persuasion were the matter to be restored to her for an oral hearing or (as it happened) were she assigned to hear the full appeal.

In these circumstances there was no basis for the informed observer to have apprehended a real danger of bias. The claimant’s case stands or falls on paragraph 2 of the judge’s order. I would therefore dismiss the appeal.

I agree.

I also agree.