Howell and others v Lees Millais and others: CA 4 Jul 2007

Appeal against refusal of judge to recuse himself after acrimonuious correspondence between judge and other members of the claimant’s solicitors firm who now asserted apparent bias.

Judges:

Sir Anthony Clarke MR

Citations:

[2007] EWCA Civ 720

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedAmeyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 20 December 2022; Ref: scu.254542

Lawal v Northern Spirit Limited: HL 19 Jun 2003

Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased. The rules recognised the need to separate counsel’s practice from the area in which he sat. The threshold is only a real possibility of unconscious bias. One starts by identifying the circumstances which are said to give rise to bias. Would a fair minded and informed observer, having considered the given facts, conclude that there was a real possibility that the tribunal was biased. Mr Lawal has succeeded on the issue of principle raised by the Recorder objection.
Lord Steyn said: ‘Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53, by Kirby J when he stated that ‘a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.’

Judges:

L Bingham of Cornhill, L. Millett, L. Nicholls of Birkenhead, L. Rodger of Earlsferry, L. Steyn

Citations:

Gazette 17-Jul-2003, [2003] UKHL 35, [2003] ICR 856, [2004] 1 All ER 187

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromAA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
ApprovedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
CitedRegina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
CitedBelilos v Switzerland ECHR 29-Apr-1988
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (validity of declaration); Violation of Art. 6-1; Costs and expenses award – domestic proceedings; Costs and expenses award – . .
CitedTaylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
CitedWettstein v Switzerland ECHR 21-Dec-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Costs and expenses partial award – Convention proceedings; Costs and expenses partial award – national . .
CitedJohnson v Johnson 7-Sep-2000
(High Court of Australia) When looking to test whether a member of the public would perceive bias in a court, it is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. One is entitled to conclude . .
See AlsoLawal v Northern Spirit Ltd CA 19-Feb-2004
. .
See AlsoLawal v Northern Spirit Ltd EAT 15-Feb-1999
The appellant wished to pursue an appeal against the striking out of his claim, and objected that contrary to the Rules, a member of the board who had heard the pre-hearing review had also sat on the full hearing.
Held: The appeal should be . .
See AlsoLawal v Northern Spirit Ltd EAT 6-Oct-1999
The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
Held: There was no real possibility of bias from this scenario. . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2001
. .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal. . .
See AlsoLawal v Northern Spirit Ltd CA 15-Jan-2002
Application for leave to appeal . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
. .
CitedLawal v Northern Spirit Ltd CA 30-Oct-2002
. .

Cited by:

Appealed toAA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
CitedPD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
CitedRegina on the Application of Mahfouz v The Professional Conduct Committee of the General Medical Council CA 5-Mar-2004
The doctor requested members of the disciplinary tribunal to recuse themselves when, after the first day of the hearing they saw prejudicial material in newspapers which material was not in evidence. They had further declined to allow an adjournment . .
See AlsoLawal v Northern Spirit Ltd CA 19-Feb-2004
. .
CitedFeld, Lord Mayor and Citizens of the City of Westminster v London Borough of Barnet, Lord Mayor and Citizens of the City of Westminster CA 18-Oct-2004
The applicants sought housing as homeless people. After the refusal of their applications, they sought a review, and in due course a second review. That second review was conducted by the same officer who had conducted the first. The appellant . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
CitedMeerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
CitedScrivens v Ethical Standards Officer Admn 11-Apr-2005
The councillor appealed an adjudication that he had failed adequately to declare an interest at a meeting of the council. The officer thought the duty to withdraw was entirely objective, the applicant that it was a matter for his honest judgment. At . .
CitedGillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
CitedMorrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
CitedPort Regis School Ltd, Regina (on the Application of) v Gillingham and Shaftesbury Agricultural Society Admn 5-Apr-2006
Complaint was made that the decision of a planning committee had been biased because of the presence on the committee of two freemasons, and where the interests of another Lodge were affected.
Held: The freemasonry interests had been declared. . .
CitedRegina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
CitedA, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
CitedMousa, Regina (on The Application of) v Secretary of State for Defence and Another CA 22-Nov-2011
The claimant sought a public inquiry into allegations of systematic ill treatment by UK soldiers in Iraq. He now appealed against refusal of an inquiry, the court having found it permissible for the Secretary of Styate to await the outcome of . .
CitedJL, Regina (On the Application of) v Secretary Of State for Justice Admn 7-Oct-2009
. .
CitedO’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
CitedAmeyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights, Legal Professions, Natural Justice

Updated: 20 December 2022; Ref: scu.183695

St Johnstone Football Club v Scottish Football Association Ltd: 1965

The Supervisory jurisdiction of the Court of Session was available to check whether the proceedings leading to a disciplinary decision of the Scottish Football Association, a private association, had been conducted in accordance with natural justice.

Citations:

1965 SLT 171

Jurisdiction:

Scotland

Cited by:

CitedDavidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Natural Justice

Updated: 07 December 2022; Ref: scu.237574

Bruce, Regina (on the Application of) v Financial Ombudsman Services Ltd and others: Admn 11 Jun 2007

The claimant said that a determination of the Ombudsman had been made in breach of the rules of natural justice, saying that she had not been given any opportunity to take part in the process. The complaint had been against a firm of which she had been a member but which she had left.
Held: The claim failed: ‘it would be wrong in principle to order judicial review of the decision made by the Financial Ombudsman Service here without, as an absolute minimum, having presented to me some basis on which, were there to be a re-investigation, some different decision might be reached. Nothing has been put before me about that. The very important rules of natural justice have been brought into play by the claimant. But, in my judgment, the firm, which is the responsible body, is clearly on proper notice and clearly had plenty of opportunity to put in its submissions.’

Judges:

Hodge J

Citations:

[2007] EWHC 1646 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services, Natural Justice

Updated: 06 December 2022; Ref: scu.254606

British Sky Broadcasting Ltd, Regina (on The Application of) v The Central Criminal Court and Another: Admn 21 Dec 2011

The claimant challenged a production order made by the magistrates in respect of journalists’ material. They complained that the application had used secret evidence not disclosed to it, and that the judge had not given adequate reasons to support the decision. The poice were investigating an offence under the 1989 Act.
Held: It was common ground that neither the Civil nor the Criminal Procedure Rules contain any provisions governing an application under section 9 and schedule 1 of PACE. Paragraph 7 of schedule 1 requires the hearing to be conducted inter partes, but apart from that the only procedural requirement is that they be conducted in accordance with common law principles of fairness and the requirements of Article 6 of the ECHR.
The procedure adopted in this case was unlawful: ‘there was a failure to observe a fundamental principle of law bearing directly on the fairness of the proceedings, a matter which the court should be very slow to condone. Moreover, however carefully the judge considered the secret evidence, that can be no substitute for allowing B Sky B to challenge it, for the reasons given by Lord Kerr in Al Rawi.’

Judges:

Moore-Bick LJ, Bean J

Citations:

[2011] EWHC 3451 (Admin), [2012] 3 WLR 78, 2012 GWD 21-432, 2012 SCL 635, 2012 SCCR 562, [2012] 4 All ER 600, [2012] QB 785, [2012] HRLR 24

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 9, Official Secrets Act 1989 1

Jurisdiction:

England and Wales

Citing:

CitedMalik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
CitedRegina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
CitedAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
CitedRegina v Central Criminal Court Ex Parte Bright; Regina v Same, Ex Parte Rusbridger QBD 21-Jul-2000
An order was made for a journalist to disclose to the police material disclosed to him in connection with a prosecution under the Official Secrets Act. The journalist appealed the order, on the basis that it was in effect an order that he . .

Cited by:

Appeal fromBritish Sky Broadcasting Ltd, Regina (on The Application of) v The Commissioner of Police of The Metropolis SC 12-Mar-2014
The court was asked as to the powers of Magistrates hearing an application for a search warrant to receive excluded or special procedure material which had not been disclosed to the respondent. The court had overturned an order made by the district . .
Lists of cited by and citing cases may be incomplete.

Police, Media, Magistrates, Human Rights, Natural Justice

Updated: 04 December 2022; Ref: scu.459730

Cowley v Heartley: 24 Jul 1986

It is the courts’ function to control illegality and make sure that a body does not act outside its powers.

Judges:

Sir Nicolas Browne-Wilkinson V-C

Citations:

Times 24-Jul-1986

Jurisdiction:

England and Wales

Citing:

ApprovedMcInnes v Onslow-Fane ChD 1978
The applicant had been granted a boxing manager’s licence for several years. He appealed its refusal now over a few years.
Held: The case was in the application for a licence rather than in a forfeiture or an expectation class, and there was . .

Cited by:

MentionedFlaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Contract

Updated: 01 December 2022; Ref: scu.230095

Charkaoui v Minister of Citizenship and Immigration: 23 Feb 2007

(Supreme Court of Canada) The court considered the procedure for immigration appeals involving the use of evidence not to be given to the applicant.
Held: The statutory procedures for reviewing certificates of inadmissibility to Canada and consequent detentions were inadequate: ‘the government can do more to protect the individual while keeping critical information confidential’.
McLachlin CJ said: ‘Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to it.’ and ‘ . . The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?’

Judges:

McLachlin CJ

Citations:

[2007] 1 SCR 350, (2007) 276 DLR (4th) 594, (2007) 152 CRR (2d) 17, (2007) 44 CR (6th) 1, (2007) 54 Admin LR (4th) 1

Links:

Canlii

Jurisdiction:

Canada

Cited by:

CitedTimes Newspapers Ltd v Secretary of State for the Home Department and AY Admn 17-Oct-2008
The newspaper applied to challenge the protection of the identity of the defendant subject to a control order under the 2005 Act. It said that there was no basis for the making of the order without first considering the Human Rights need for open . .
CitedSecretary of State for the Home Department v AF AM and AN etc CA 17-Oct-2008
The claimants were subject to non-derogating control orders, being non EU nationals suspected of terrorism. They now said that they had not had a compatible hearing as to the issue of whether they were in fact involved in terrorist activity.
Lists of cited by and citing cases may be incomplete.

International, Natural Justice

Updated: 30 November 2022; Ref: scu.263783

Seer Technologies Ltd and another v Abbas and another: ChD 16 Mar 2000

Although no attempt could properly be made to list or limit the circumstances which might give rise to a claim of bias in a judge, it was inconceivable that circumstances might allow a judge’s independence to be challenged on the grounds of his religious persuasion or background. The fact that the applicant was an Arab, and that the judge in question and many of the other party’s lawyers were Jewish was quite irrelevant.

Citations:

Times 16-Mar-2000

Jurisdiction:

England and Wales

Natural Justice

Updated: 30 November 2022; Ref: scu.89160

Regina v Visitors to the Inns of Court ex parte Calder: CA 1993

Two barristers had been struck off for disciplinary offences. Their appeals were heard by three High Court judges sitting as Visitors, who dismissed the appeals. The barristers now sought judicial review of that decision.
Held: Justices sitting as visitors were not sitting as judges as such, but in a domestic forum, and their decisions were not subject to judicial review under section 16 of the 1873 Act.
Nevertheless the Visitors may themselves have misunderstood their role, limiting themselves to a review rather than hearing an appeal, and the decsion was quashed and remitted to the Divisional Court.
Sir Donald Nicholls VC said: ‘There remains Miss Calder’s fourth ground of appeal: that the visitors misunderstood their role. She contends that the visitors were sitting as an appellate tribunal, not (as they seemed to have thought) as a reviewing tribunal, and hence they failed fully and properly to carry out their duties as visitors. As to this, first, I can see no reason to doubt that an appeal to the judges as visitors is precisely that: an appeal. It is so described in the authorities. In Lincoln v Daniels [1962] 1 Q.B. 237, 256, Devlin L.J. referred to it as ‘a re-hearing on appeal.’ Thus the visitors will look afresh at the matters in dispute and form their own views. The procedure followed in the conduct of such an appeal is a matter for the visitors. The current visitors’ rules provide that fresh evidence will be admissible only in exceptional circumstances. In the absence of fresh evidence the appeal will be comparable to an appeal in the Civil Division of the Court of Appeal. Regarding sentence, it will be for the visitors to exercise their own discretion and judgment.
Second, I am in no doubt that if visitors conduct, not an appeal of this nature, but a review of the disciplinary tribunal’s findings and decisions comparable to that undertaken by the court by way of judicial review of decisions of inferior courts or tribunals, then the visitors’ decision is amenable to judicial review. . ‘
Stuart-Smith LJ said: ‘I come then to the final ground of appeal, namely, that the visitors misdirected themselves as to the nature of their jurisdiction in that they treated the matters as one of review rather than appeal by way of re-hearing on merits. It was not contested before us that the proper approach was that of an appellate court re-hearing the case on its merits, such as is the position of the Court of Appeal on appeal in a civil case from the decision of a judge alone. Although the point has never fallen to be decided, I agree that this is the correct approach. All the cases dealing with a judges’ jurisdiction as visitors referred to it as an appeal to the visitors. There is no warrant for thinking that they limited themselves to the circumstances in which the prerogative writs of prohibition, mandamus or certiorari would lie, that being the foundation of the judicial review jurisdiction. The language of the Hearings before the Visitors Rules 1991 is appropriate for an appeal and not a review only. Thus the Appellant is referred to as such and not an Applicant: Rule 2(2). The grounds of appeal are against the finding and the petition should refer to the evidence relied upon: rules 5 and 7(2)(e). The visitors may either allow the appeal or order a re-hearing: rule 11(3). They are not limited to quashing the order. Like any other appellate court, the visitors do not as a rule hear evidence from witnesses unless they give leave under rule 10(6) and (7). Accordingly they should adopt the same approach to findings of fact made by the tribunals as the Court of Appeal do in findings of the trial judge: see Yuill v Yuill [1945] P.15; Watts or Thomas v Thomas[1947] A.C. 485 and Powell Streatham Manor Nursing Home [1935] A.C. 243.’

Judges:

Sir Donald Nicholls VC, Stuart-Smith LJ

Citations:

[1994] QB 1, [1993] 3 WLR 287

Statutes:

Supreme Court of Judicature Act 1873 16

Jurisdiction:

England and Wales

Citing:

CitedRegina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .

Cited by:

CitedMcCarthy v Visitors To The Inns of Court and Another Admn 25-Oct-2013
The claimant barrister sought judicial review of his disbarrment. The Board of Visitors had found that he had dishonestly fabricated documents relating to correspondence with a client. He now said that the proceedings had been unfair, in that an . .
CitedMcCarthy, Regina (on The Application of) v The Visitors To The Inns of Court and Another CA 20-Jan-2015
The court was asked whether the decision of the Visitors to the Inns of Court dismissing Mr McCarthy’s appeal from the Bar Disciplinary Tribunal should be quashed with a view to the underlying matter being remitted to the Tribunal. The Tribunal . .
CitedO’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Natural Justice

Updated: 27 November 2022; Ref: scu.542700

Regina v Disciplinary Committee of the Jockey Club, ex parte Aga Khan: CA 4 Dec 1992

No Judicial Review of Decisions of Private Body

Despite the wide range of its powers, the disciplinary committee of the Jockey Club remains a domestic tribunal. Judicial review is not available to a member. The relationship is in contract between the club and its member.
Sir Thomas Bingham MR said: ‘No serious racecourse management, owner, trainer or jockey can survive without the recognition or licence of the Jockey Club. There is in effect no alternative market in which those not accepted by the Jockey Club can find a place or to which race goers may resort. Thus by means of the rules and its market domination the Jockey Club can effectively control not only those who agree to abide by its rules but also those — such as disqualified or excluded persons seeking to participate in racing activities in any capacity — who do not. For practical purposes the Jockey Club’s writ runs in the British racing world, to the acknowledged benefit of British racing.’
As to the rules of racing: ‘The Rules of Racing are a skilfully drafted, comprehensive and far-reaching code of rules through which the Jockey Club exercises its control over racing in this country.’
Farquharson LJ said: ‘there has never been any doubt that public law remedies do not lie against domestic bodies, as they derive solely from the consent of the parties. . The question remains whether the Jockey Club, or this particular decision of it, can properly be described as a domestic body acting by consent.
. . The courts have always been reluctant to interfere with the control of sporting bodies over their own sports and I do not detect in the material available to us any grounds for supposing that, if the Jockey Club were dissolved, any governmental body would assume control of racing. Neither in its framework nor its rules nor its function does the Jockey Club fulfil a governmental role.
I understand the criticism made by Mr. Kentridge of the reality of the consent to the authority of the Jockey Club. The invitation to consent is very much on a take it or leave it basis. But I do not consider that this undermines the reality of the consent. Nearly all sports are subject to a body of rules to which an entrant must subscribe. These are necessary, as already observed, for the control and integrity of the sport concerned. In such a large industry as racing has become, I would suspect that all those actively and honestly engaged in it welcome the control of licensing and discipline exerted by the Jockey Club.
For these reasons I would hold that the decision of the Disciplinary Committee of the Jockey Club to disqualify Aliysa from the 1989 Oaks is not susceptible to judicial review.
As to Mr. Milmo’s assertion that the question of the Jockey Club’s susceptibility to judicial review must be answered on an all or nothing basis, I can only say as at present advised that I do not agree. . . While I do not say that particular circumstances would give a right to judicial review I do not discount the possibility that in some special circumstances the remedy might lie. If for example the Jockey Club failed to fulfil its obligations under the charter by making discriminatory rules, it may be that those affected would have a remedy in public law.
In the present appeal there is no hardship to the applicant in his being denied judicial review. If his complaint that the disciplinary committee acted unfairly is well-founded there is no reason why he should not proceed by writ seeking a declaration and an injunction. Having regard to the issues involved it may be a more convenient process. I would dismiss the appeal.’
Hoffmann LJ said: ‘It is true that in some countries there are statutory bodies which exercise at least some control over racing. It appears from Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 that this is the position in Tasmania and we were told that it was also true of certain of the United States. But different countries draw the line between public and private regulation in different places. The fact that certain functions of the Jockey Club could be exercised by a statutory body and that they are so exercised in some other countries does not make them governmental functions in England. The attitude of the English legislator to racing is much more akin to his attitude to religion (see Reg v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 WLR 1036): It is something to be encouraged but not the business of government.
All this leaves is the fact that the Jockey Club has power. But the mere fact of power, even over a substantial area of economic activity, is not enough. In a mixed economy, power may be private as well as public. Private power may affect the public interest and the livelihoods of many individuals. But that does not subject it to the rules of public law. If control is needed, it must be found in the law of contract, the doctrine of restraint of trade, the Restrictive Trade Practices Act 1976, articles 85 and 86 of the EEC Treaty and all the other instruments available in law for curbing the excesses of private power.
It may be that in some cases the remedies available in private law are inadequate. For example, in cases in which power is exercised unfairly against persons who have no contractual relationship with the private decision-making body, the court may not find it easy to fashion a cause of action to provide a remedy. In Nagle v Feilden [1966] 2 QB 633, for example, this court had to consider the Jockey Club’s refusal on grounds of sex to grant a trainer’s licence to a woman. She had no contract with the Jockey Club or (at that time) any other recognised cause of action, but this court said that it was arguable that she could still obtain a declaration and injunction. There is an improvisatory air about this solution and the possibility of obtaining an injunction has probably not survived Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera SA[1979] AC 210.
It was recognition that there might be gaps in the private law that led Simon Brown J. in Reg v Jockey Club, Ex parte RAM Racecourses Ltd. [1993] 2 A11 ER 225 to suggest that case like Nagle v Feilden [1966] 2 QB 633, as well as certain others involving domestic bodies like the Football Association in Eastham v Newcastle United Football Club Ltd [1964] Ch 413 and a trade union in Breen v. Amalgamated Engineering Union [1971] 2 QB 175, ‘had they arisen today and not some years ago, would have found a natural home in judicial review proceedings.’ For my part, I must respectfully doubt whether this would be true. Trade unions have now had obligations of fairness imposed upon them by legislation, but I doubt whether, if this had not happened, the courts would have tried to fill the gap by subjecting them to public law. The decision of Rose J. in Reg v. Football Association Ltd, Ex parte Football League Ltd, The Times, 22 August 1991, which I found highly persuasive, shows that the same is probably true of the Football Association. I do not think that one should try to patch up the remedies available against domestic bodies by pretending that they are organs of government.
In the present case, however, the remedies in private law available to the Aga Khan seem to me entirely adequate. He has a contract with the Jockey Club, both as a registered owner and by virtue of having entered his horse in the Oaks. The club has an implied obligation under the contract to conduct its disciplinary proceedings fairly. If it has not done so, the Aga Khan can obtain a declaration that the decision was ineffective (I avoid the slippery word void) and, if necessary, an injunction to restrain the club from doing anything to implement it. No injustice is therefore likely to be caused in the present case by the denial of a public law remedy.’
Sir Thomas Bingham MR said that the test was whether the powers exercised were governmental: ‘I have little hesitation in accepting the applicant’s contention that the Jockey Club effectively regulates a significant national activity, exercising powers which affect the public and are exercised in the interest of the public. I am willing to accept that if the Jockey Club did not regulate this activity the government would probably be driven to create a public body to do so.
But the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body. While the grant of a Royal Charter was no doubt a mark of official approval, this did not in any way alter its essential nature, functions or standing. Statute provides for its representation on the Horserace Betting Levy Board, no doubt as a body with an obvious interest in racing, but it has otherwise escaped mention in the statute book. It has not been woven into any system of governmental control of horseracing, perhaps because it has itself controlled horseracing so successfully that there has been no need for any such governmental system and such does not therefore exist. This has the result that while the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental. The discretion conferred by section 31(6) of the Supreme Court Act 1981 to refuse the grant of leave or relief where the applicant has been guilty of delay which would be prejudicial to good administration can scarcely have been envisaged as applicable in a case such as this.
I would accept that those who agree to be bound by the Rules of Racing have no effective alternative to doing so if they want to take part in racing in this country. It also seems likely to me that if, instead of Rules of Racing administered by the Jockey Club, there were a statutory code administered by a public body, the rights and obligations conferred and imposed by the code would probably approximate to those conferred and imposed by the Rules of Racing. But this does not, as it seems to me, alter the fact, however anomalous it may be, that the powers which the Jockey Club exercises over those who (like the applicant) agree to be bound by the Rules of Racing derive from the agreement of the parties and give rise to private rights on which effective action for a declaration, an injunction and damages can be based without resort to judicial review. It would in my opinion be contrary to sound and long-standing principle to extend the remedy of judicial review to such a case.

‘It is unnecessary for purposes of this appeal to decide whether decisions of the Jockey Club may ever in any circumstances be challenged by judicial review and I do not do so. Cases where the applicant or plaintiff has no contract on which to rely may raise different considerations and the existence or non-existence of alternative remedies may then be material. I think it better that this court should defer detailed consideration of such a case until it arises. I am, however, satisfied that on the facts of this case the appeal should be dismissed.’

Judges:

Sir Thomas Bingham MR, Farquharson LJ, Hoffmann LJ

Citations:

[1993] 1 WLR 909, [1992] EWCA Civ 7

Links:

Bailii

Statutes:

Civil Procedure Rules 54

Jurisdiction:

England and Wales

Citing:

CitedLaw v National Greyhound Racing Club Limited CA 29-Jul-1983
The plaintiff alleged abuse of the discretion conferred on the club by the rules. His trainer’s licence had been suspended. He said that it was contrary to an implied term of an agreement between the trainer and the racing club that any action taken . .

Cited by:

CitedWright v The Jockey Club QBD 15-May-1995
A jockey had been refused a jockey’s licence for medical reasons. He sought damages for his loss of earnings. The club applied to strike out the claim as showing no arguable cause of action.
Held: The duties of a body exercising a licensing . .
CitedMullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .
CitedStretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Lists of cited by and citing cases may be incomplete.

Company, Natural Justice, Civil Procedure Rules, Administrative

Leading Case

Updated: 27 November 2022; Ref: scu.197904

Re McCutcheon and City of Toronto: 1983

(Ontario High Court of Justice) The appellant had been given a parking ticket. She could pay a penalty, in which event there would be no further proceedings against her, but if she did not, she would be liable to conviction and payment of a fine. The appellant challenged the law on several grounds, including that it was inconsistent with her right to be presumed innocent under paragraph 11(d) of the Canadian Charter of Rights and Freedoms.
Held: Linden J rejected that submission: ‘In my view there is no merit in this submission. The sliding-scale settlements scheme has nothing to do with the presumption of innocence. It is a convenient way for a traffic violator to avoid being charged. Anyone can refuse to pay anything pursuant to the scheme and await the service of the summons. At that time, the full panoply of defence rights come into play, including the presumption of innocence. Accordingly, there is no infringement here of the right of the accused to be presumed innocent.’

Citations:

(1983) 147 DLR (3d) 193

Jurisdiction:

Canada

Cited by:

CitedLawrence v Financial Services Commission PC 14-Dec-2009
lawrence_fscPC2009
(Jamaica) The appellant challenged a fixed penalty notice issued in respect of a financial services allegation, saying that it had been made without him having been allowed opportunity to be heard by an impartial tribunal.
Held: Actions under . .
Lists of cited by and citing cases may be incomplete.

Natural Justice

Updated: 26 November 2022; Ref: scu.384109

C v S and Others (Money Laundering: Discovery of Documents): CA 3 Oct 1998

The money laundering regulations create a conflict between private rights and criminal provisions, particularly the restriction on information which might prejudice an investigation may be under way. Conflicts were resolved by guidance from NCIS. The court set out a procedure to be followed where compliance with an order for disclosure of information in civil proceedings might reveal money-laundering and cause the financial institution to be in breach of tipping off provisions under section 93D of Act

Citations:

Times 05-Nov-1998, [1998] EWCA Civ 1474, [1999] 2 All ER 343, [1999] 1 WLR 1551

Statutes:

Criminal Justice Act 1988 93D

Jurisdiction:

England and Wales

Cited by:

CitedP v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Legal Professions

Updated: 25 November 2022; Ref: scu.135876

Regina v Uxbridge Justices, ex parte Burbridge: 20 Jun 1972

When considering the fairness of a particular tribunal hearing a case, the test was whether ‘a reasonable and fair-minded person sitting in the court and’ knowing all the relevant facts have a ‘reasonable suspicion that a fair trial for’ the applicant ‘was not possible’.’

Judges:

Lord Widgery CJ

Citations:

Times 20-Jun-1972

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Liverpool City Justices ex parte Topping 1983
When the Applicant appeared before the Justices, his solicitor submitted that the Justices should acknowledge that they were aware that in addition to the matter which they were about to try (that is to say an offence of criminal damage against a . .
Lists of cited by and citing cases may be incomplete.

Natural Justice

Updated: 24 November 2022; Ref: scu.211435

Krombach v Bamberski: ECFI 30 Mar 2000

Normally a court within the European community could not refuse to enforce a judgment of another members state. It could do so however where the judgment had been obtained by virtue of a procedure which denied the right of a defendant to appear other than in person, and where the judgment had, accordingly been entered in the absence of contribution from the defendant. Here the French court had declined to hear from the Defendant’s legal representative in his absence.
ECFI ‘recourse to the public policy clause in article 27(1) of the Convention can be envisaged only where recognition or enforcement of the judgment delivered in another contracting state would be at variance to an unacceptable degree with the legal order of the state in which enforcement is sought in as much as it infringes a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of the rule of law regarded as essential in the legal order of the state in which enforcement is sought or of a right recognised as being fundamental within that legal order.’

Citations:

Times 30-Mar-2000, Case C-7/98, [2000] EUECJ C-7/98, [2000] ECR I-1935

Links:

Bailii

Statutes:

1968 Brussels Convention

Jurisdiction:

European

Cited by:

CitedGolubovich v Golubovich CA 21-May-2010
The court was asked to rule as to the recognition of a foreign (Moscow) decree of divorce obtained in breach of an Hemain injunction. The Russian proceedings had got to a stage requiring H positively to apply to prevent the decree.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Natural Justice

Updated: 19 November 2022; Ref: scu.82848

Dooley v The Union of Construction Allied Trades and Technicians (Certification Officer): EAT 19 Apr 2013

EAT CERTIFICATION OFFICER
The Appellant was disciplined by the Respondent’s executive council. He argued that the decision was vitiated by breaches of the rules of natural justice, in that (1) members of the executive council were automatically disqualified by bias in the circumstances, alternatively (2) there was apparent bias on their part, such that some different body ought to have been constituted to hear the disciplinary proceedings. He further argued that the union must have misconstrued its own rules by finding a disciplinary matter proved when (it was argued) the Appellant was doing no more than asserting his rights, as he was entitled to do by virtue of article 10 and 11 of the ECHR. The certification officer decided against him.
Appeal dismissed. The certification officer was correct to find that there was no breach of the rules of natural justice and that the union had complied with its own rules.

Judges:

David Richardson J

Citations:

[2013] UKEAT 0523 – 12 – 1904

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Natural Justice

Updated: 17 November 2022; Ref: scu.512141

Jones and Another v Welsh Rugby Football Union; Same v Pugh (For and On Behalf of Welsh RFU): CA 19 Dec 1997

Disciplinary proceedings against a sportsman which had been set aside for him having received an unfair hearing, may be re-instated once the defects in the procedure were remedied.

Citations:

Times 06-Jan-1998, [1997] EWCA Civ 3066

Jurisdiction:

England and Wales

Citing:

At EATJones and Another v Welsh Rugby Football Union QBD 6-Mar-1997
A professional sportsman should be allowed to have representation on a suspension hearing, which might affect his ability to earn his living. However Ebsworth J doubted the correctness of the intrusion of courts into such matters, saying that:’There . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Contract

Updated: 13 November 2022; Ref: scu.82592

Downie and Others v Coe and Others (a Firm): CA 28 Nov 1997

A claim to a right of a witness against self incrimination must be made by that person in person on oath though substantiation elsewhere.

Citations:

Times 28-Nov-1997, [1997] EWCA Civ 2648

Jurisdiction:

England and Wales

Cited by:

CitedC Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 11 November 2022; Ref: scu.80111

JSC BTA Bank v Ablyazov (Recusal): CA 28 Nov 2012

The question was whether a judge had been right not to recuse himself as the nominated judge of trial, in circumstances where he had had to hear, prior to trial, an application to commit one of the parties for contempt of court and had found a number of contempts proven, by reason of the doctrine of apparent bias in Magill v Porter.
Held: Although the principles of apparent bias are now well established and were not in dispute, the application of them is wholly fact sensitive. The critical consideration is that what the first judge does, he does as part and parcel of his judicial assessment of the litigation before him: ‘He is judging the matter before him, as he is required by his office to do. If he does so fairly and judicially, I do not see that the fair-minded and informed observer would consider that there was any possibility of bias.’
Rix LJ (with whom Toulson and Maurice Kay LJJ agreed) asked whether there could be any difference between the judge who bears in mind his own findings and observations and another (second) judge who reads what the first judge has written, as he must be entitled to do. He answered: ‘ . . unless the first judge has shown by some judicial error, such as the use of intemperate, let me say unjudicial, language, or some misjudgement which might set up a complaint of the appearance of bias, the fair-minded and informed observer is unlikely to think that the first judge is in any different position from the second judge – other than that he is more experienced in the litigation.
In this connection, it seems to me that the critical consideration is that what the first judge does he does as part and parcel of his judicial assessment of the litigation before him: he is not ‘pre-judging’ by reference to extraneous matters or predilections or preferences. He is not even bringing to this litigation matters from another case (as may properly occur in the situation discussed in Ex Parte Lewin; In re Ward [1964] NSWR 446, approved in Livesey v New South Wales Bar Association 151 CLR 288). He is judging the matter before him, as he is required by his office to do. If he does so fairly and judicially, I do not see that the fair-minded and informed observer would consider that there was any possibility of bias. I refer to the helpful concept of a judge being ‘influenced for or against one or other party for reasons extraneous to the legal or factual merits of the case’: see Secretary of State for the Home Department v AF (No. 2) [2008] 1 WLR 2528, para 53. I have also found assistance in this context in Lord Bingham’s concept of the ‘objective judgment’. The judge has been at all times bringing his objective judgment to bear on the material in this case, and he will continue to do so. Any other judge would have to do so, on the same material, which would necessarily include this judge’s own judgments.’

Judges:

Rix, Toulson, Maurice Kay LJJ

Citations:

[2012] EWCA Civ 1551, [2013] 1 WLR 1845, [2012] WLR(D) 366

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal fromJSC BTA Bank v Ablyazov and Others ComC 1-Nov-2012
The judge considered an application by a defendant that he recuse himself.
Held: He did not do so. . .
See AlsoJSC BTA Bank v Ablyazov CA 6-Nov-2012
A appealed from three judgments of Mr Justice Teare under which the judge has respectively (i) found him guilty of contempt of court; (ii) sentenced him on each of three proven contempts to 22 months in custody concurrently; and (iii) in consequence . .

Cited by:

CitedO’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
CitedOtkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
Lists of cited by and citing cases may be incomplete.

Natural Justice

Updated: 09 November 2022; Ref: scu.466383

L, Regina (on The Application of) v West London Mental Health NHS Trust: Admn 13 Nov 2012

Citations:

[2012] EWHC 3200 (Admin)

Links:

Bailii

Cited by:

Appeal fromL, Regina (on The Application of) v West London Mental Health NHS Trust and Others CA 29-Jan-2014
The court considered the narrow but important question in this appeal concerns the requirements of the common law principles of procedural fairness in cases where a convicted offender is detained under section 37 as mentally ill and is being . .
Lists of cited by and citing cases may be incomplete.

Health, Natural Justice

Updated: 06 November 2022; Ref: scu.465732

PC Harrington Contractors Ltd v Systech International Ltd: CA 23 Oct 2012

The court considered the recoverability of the fees an arbitrator appointed under the 1996 Act, were the award had been determined unenforceable for a breach of the rules of natural justice.
Held: The appeal against an order for payment of he fees succeeded. The arbitrator had not fulfilled the contract for which he had been employed.

Judges:

Lord Neuberger MR, Davis, Treacy LJJ

Citations:

[2012] EWCA Civ 1371, [2012] WLR(D) 284, [2013] BUS LR 970

Links:

Bailii, WLRD

Statutes:

Housing Grants, Construction and Regeneration Act 1996

Jurisdiction:

England and Wales

Arbitration, Costs, Natural Justice

Updated: 05 November 2022; Ref: scu.465114

Haikal v Council (Judgment): ECFI 16 Dec 2020

Common foreign and security policy – Restrictive measures taken against Syria – Freezing of funds – Rights of the defense – Right to a fair trial – Obligation to state reasons – Right to effective judicial protection – Error of assessment – Right to property – Proportionality – Right to exercise an economic activity – Right to respect for private and family life

Citations:

ECLI:EU:T:2020:607, T-189/19, [2020] EUECJ T-189/19

Links:

Bailii

Jurisdiction:

European

Banking, Natural Justice

Updated: 04 November 2022; Ref: scu.660728

Regina v Secretary of State for Home Department ex parte Fayed: CA 13 Nov 1996

The nature of the Secretary of State’s objections and a chance to reply are to be given if the Secretary intends to deny an application for naturalisation. Administrative convenience cannot justify unfairness. The court deprecated ‘fishing expeditons’ by those seeking a judicial review.
Woolf LJ MR said: ‘on an application for judicial review there is usually no [disclosure] because [disclosure] should be unnecessary because it is the obligation of the [defendant] public body in its evidence to make fresh disclosure to the court of the decision-making process.’

Judges:

Woolf LJ MR

Citations:

Times 18-Nov-1996, [1996] EWCA Civ 946, [1998] 1 WLR 763, [1997] INLR 137, [1997] 1 All ER 228, [1997] COD 205

Links:

Bailii

Statutes:

British Nationality Act 1981 44(2)

Jurisdiction:

England and Wales

Cited by:

CitedThe Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .
CitedTweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
CitedAl-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
CitedCart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional, Natural Justice, Judicial Review

Updated: 03 November 2022; Ref: scu.140813

Wilander and Another v Tobin and Another: CA 8 Apr 1996

The reversal of the burden of proof was not unfair for sportsmen once they had tested positive for drugs under the sports anti-doping policies. The policies were neither an unlawful restraint on trade nor contrary to natural justice.

Judges:

Lord Justice Neill, Lord Justice Peter Gibson and Lord Justice Hobhouse

Citations:

Times 08-Apr-1996

Jurisdiction:

England and Wales

Cited by:

See AlsoWilander and Another v Tobin and Another ChD 15-Jul-1996
The Lawn Tennis Association’s anti-doping rules are arguably void since they did not give any effective right of appeal. . .
Lists of cited by and citing cases may be incomplete.

Natural Justice

Updated: 31 October 2022; Ref: scu.90496

Regina v Mullen: CACD 4 Feb 1999

British authorities, in disregard of available extradition procedures, initiated and procured the unlawful deportation of the appellant from Zimbabwe to England. The appellant was charged and tried for conspiracy to cause explosions likely to endanger life or to cause serious injury to property. It was alleged that he was a member of the IRA. In 1990, following a trial at the Central Criminal Court, he was convicted and sentenced to 30 years imprisonment. Some years later the circumstances in which he was be deported to England came to light.
Held: The conviction was quashed: ‘Furthermore, although abuse of process, unlike jurisdiction, is a matter calling for the exercise of discretion, it seems to us that Bennett-type abuse, where it would be offensive to justice and propriety to try the defendant at all, is different both from the type of abuse which renders a fair trial impossible and from all other cases where an exercise of judicial discretion is called for. It arises not from the relationship between the prosecution and the defendant, but from the relationship between the prosecution and the Court. It arises from the Court’s need to exercise control over executive involvement in the whole prosecution process, not limited to the trial itself.’
Rose LJ: ‘This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the I.R.A. and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy to which, as appears from R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR 104, very considerable weight must be attached.’

Judges:

Rose LJ

Citations:

Times 15-Feb-1999, [2000] QB 520, [1999] EWCA Crim 278, [1999] 2 CAR 143

Links:

Bailii

Statutes:

Criminal Appeal Act 1995 2

Jurisdiction:

England and Wales

Citing:

CitedRegina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
CitedRegina v Mills, Regina v Poole HL 24-Jul-1997
The prosecution have a duty to disclose to the defence the statement of an adverse witness and not just to provide the name and address, even though that person was not seen as credible witness by the prosecution. ‘the rule in Bryant and Dickson is . .

Cited by:

FollowedRegina v Early, Regina v Bajwa, Regina v Vickers etc CACD 26-Jul-2002
The appellants challenged their convictions after several trials, alleging dishonesty on the part of the Customs and Excise prosecuting team in misleading the trial judges when making pre-trial applications. Several prosecutions had depended upon . .
CitedHounsham and Others, Regina v CACD 26-May-2005
The defendants appealed convictions for having staged motor accidents to support false insurance claims. They said that the insurance companies had contributed to the costs of the investigation by the police.
Held: It might have been most . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedDirector of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
CitedMote v Regina CACD 21-Dec-2007
The defendant appealed his convictions for offences relating to the claiming of benefits, saying that he was immune from prosecution as a member of the European Parliament, and that the verdicts were inconsistent with acquittals on other charges. . .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
CitedMaxwell, Regina v SC 20-Jul-2011
The defendant had had his conviction for murder set aside after a finding of gross prosecutorial misconduct by the police. The Court was now asked as to the propriety of the order for a retrial. The police involved in the case had misled the CPS, . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Criminal Practice

Updated: 25 October 2022; Ref: scu.88562

Regina v K (DT): CACD 25 Nov 1992

The Judge must himself examine documents for which immunity is claimed before making a decision on a public interest immunity claim. It is the court’s job, and nobody else’s to make such decisions, and to find the balance between the public interest and the right to a fair trial in any particular case.

Judges:

Lord Taylor of Gosforth LCJ, Potts J, Judge J

Citations:

Times 08-Dec-1992

Jurisdiction:

England and Wales

Criminal Practice, Natural Justice

Updated: 25 October 2022; Ref: scu.87027

Regina v Diggines, ex parte Rahmani: CA 1985

R, had failed to attend the hearing of her appeal from a refusal to extend her stay in the UK. Her advisers had failed to note her new address and had been unable to notify her of the hearing. The appeal was dismissed in her absence. The adjudicator now appealed from the grant of judicial review of the decision.
Held: The adjudicator’s appeal failed. The decision to dismiss the claim had been made in breach of natural justice, and was accordingly void as being made without jurisdiction, and was properly quashed.
Although there was no error on the part of the adjudicator in holding that r 12 covered the case, the immigrants through no fault of their own had by his exercise of the r 12 power to dispense with a hearing suffered an infringement of the rule of natural justice.

Citations:

[1985] 2 WLR 611, [1985] 1 All ER 1073, [1985] QB 1109

Statutes:

Immigration Appeals (Procedure) Rules 1972 12

Jurisdiction:

England and Wales

Cited by:

ConsideredRegina v Knightsbridge Crown Court, ex parte Johnson QBD 1986
J appealed from the magistrates court against his conviction. Due to a mix up at his solicitors, he was not informed of the hearing, and, on his non-attendance at the Crown Court, it refused an adjournment and decided the appeal against him. He now . .
Appal fromRahmani and Others v Diggines HL 20-Mar-1986
The Court of Appeal had overturned the rejection of an administrative appeal from a deportation decision, on the ground that there had been a denial of natural justice when the person involved in an administrative appeal did not attend the hearing . .
OverruledAl-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .
Lists of cited by and citing cases may be incomplete.

Immigration, Natural Justice

Updated: 01 October 2022; Ref: scu.646074

Rahmani and Others v Diggines: HL 20 Mar 1986

The Court of Appeal had overturned the rejection of an administrative appeal from a deportation decision, on the ground that there had been a denial of natural justice when the person involved in an administrative appeal did not attend the hearing through the negligence of her own immigration agents.
Held: The House affirmed the decision, but on the ground that the adjudicator had decided the case in purported exercise of a power which he did not have under the relevant statutory rules.
HL Immigration — Appeal — Immigration adjudicator — Jurisdiction to dispense with oral hearing — Conditions to be satisfied — No party to appeal requesting hearing — Applicants instructing Immigrants Advisory Service to lodge appeal and request oral hearing — Advisory service failing to record applicants’ change of address and unable to notify them of hearing date — Advisory service inviting adjudicator to dispense with oral hearing — Adjudicator dismissing appeal without hearing — Whether adjudicator entitled to dismiss appeal without hearing — Immigration Appeals (Procedure) Rules 1972, r 12.

Judges:

Lord Sarman

Citations:

[1986] 2 WLR 530, [1986] AC 475, [1986] 1 All ER 921, [1986] UKHL 12, [1986] Imm AR 195, [1986] 1 AC 475

Links:

Bailii

Statutes:

Immigration Appeals (Procedure) Rules 1972 12

Jurisdiction:

England and Wales

Citing:

Appal fromRegina v Diggines, ex parte Rahmani CA 1985
R, had failed to attend the hearing of her appeal from a refusal to extend her stay in the UK. Her advisers had failed to note her new address and had been unable to notify her of the hearing. The appeal was dismissed in her absence. The adjudicator . .

Cited by:

OverruledAl-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .
Lists of cited by and citing cases may be incomplete.

Immigration, Natural Justice, Immigration

Updated: 01 October 2022; Ref: scu.559852

Al-Mehdawi v Secretary of State for the Home Department: HL 23 Nov 1989

The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault of that party or his advisor was not one obtained in breach of the rules of natural justice for the purpose of judicial review. The loss of his right to be heard was not a procedural impropriety or denial of natural justice. Nor was he entitled to certiorari. In the public law context of removal from the jurisdiction of an alien, a litigant must answer for the failings of his legal advisers.
Lord Bridge said that any other decision would come ‘at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision-making.’
The respondent was an Iraqi student who overstayed his leave to remain in the United Kingdom. When he was served with a notice of the Secretary of State’s decision to deport him he instructed solicitors to lodge an appeal. When a hearing date for the appeal was fixed the solicitors wrote to notify him of the date but negligently sent the letter to his previous address and the respondent never received it. The adjudicator subsequently dismissed the appeal on the basis of the documents before him since neither the respondent nor his solicitors had appeared. When the solicitors received notice of the dismissal they again misaddressed the communication intended to inform the respondent of the result, so that by the time he knew of the dismissal of his appeal it was too late for him to appeal further against the adjudicator’s decision. The respondent applied for, and was granted, certiorari to quash the adjudicator’s decision, the judge holding that he was bound by a previous decision of the Court of Appeal which decided that certiorari ought to be granted where the negligence of the applicant’s solicitors had deprived him of an oral hearing. The judge’s decision was affirmed by the Court of Appeal. The Secretary of State appealed to the House of Lords.
Held — A party to a dispute who had been afforded an opportunity of presenting his case to the person deciding the dispute but who had lost the opportunity to have his case heard through the fault of the legal advisers to whom he had entrusted the conduct of the dispute on his behalf could not complain that he had been the victim of a procedural impropriety or that natural justice had been denied to him, and it made no difference whether the matter in dispute raised private law or public law issues. Accordingly, the respondent was not entitled to judicial review of the adjudicator’s decision and the Secretary of State’s appeal would therefore be allowed.

Judges:

Lord Bridge, Lord Roskill, Lord Brandon, Lord Oliver, Lord Goff

Citations:

[1989] 3 WLR 1294, [1989] 3 All ER 843, [1990] 1 AC 876, [1989] UKHL 7

Links:

Bailii

Statutes:

Immigtaion Act 1971 21

Jurisdiction:

England and Wales

Citing:

CitedRegina v West Sussex Quarter Sessions, ex parte Albert and Maud Johnson Trust CA 1973
. .
OverruledRahmani and Others v Diggines HL 20-Mar-1986
The Court of Appeal had overturned the rejection of an administrative appeal from a deportation decision, on the ground that there had been a denial of natural justice when the person involved in an administrative appeal did not attend the hearing . .
OverruledRegina v Diggines, ex parte Rahmani CA 1985
R, had failed to attend the hearing of her appeal from a refusal to extend her stay in the UK. Her advisers had failed to note her new address and had been unable to notify her of the hearing. The appeal was dismissed in her absence. The adjudicator . .

Cited by:

CitedMaqsood v The Special Adjudicator, The Secretary of State for the Home Department Admn 3-Dec-2001
The applicant sought judicial review of the decision to proceed with his appeal in his absence. He, his advisers and his witness had gone to the wrong court. The court had changed the venue from previous hearings, but the notice of hearing had not . .
CitedDirector of Public Prosecutions v Ayres Admn 20-Oct-2004
The prosecutor appealed a decision of the magistrates to dismiss the case for abuse of process, having failed to comply with several and repeated directions as to the management of the case. He said that he had not been given opportunity to make . .
CitedRegina v Immigration Appeal Tribunal ex parte Haile CA 2002
The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove . .
CitedFP (Iran) v Secretary of State for the Home Department CA 23-Jan-2007
The claimants said that rules which allowed an appeal tribunal to proceed in their absence when they were absent through no fault of their own, were unlawful in depriving them of a fair trial. The claimants had each moved house but their former . .
CitedLukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
CitedHelena Partnerships Ltd v HM Revenue and Customs CA 9-May-2012
The company had undertaken substantial building works and sought associated tax relief. The court was asked whether, following a change in the company’s memorandum and articles of association, the company, a registered social landlord, remained a . .
AppliedFormosa Plastics Corporation USA v Chauhan and others CA 6-Apr-1998
The defendant sought a second adjournment of his application for leave to appeal against summary judgment for $21m with interest in respect of a judgment obtained in Texas. The defendant was said to have given his personal guarantee for the purchase . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Immigration, Natural Justice

Updated: 29 September 2022; Ref: scu.180545

The University of Ceylon v EFW Fernando: PC 16 Feb 1960

(Ceylon) The plaintiff had complained of his suspension as a student by the appellant. The suspension had been lifted and the Inquiry leading to it had been set aside as null and void. It had been alleged that he had had advance knowledge of an exam paper. He did not know what evidence was given against him, and he was not given an oportunity to cross examine the witness.

Judges:

Viscount Simonds, Tucker, Jenkins, Morris of Borth-y-Gest LL,MD De Silva

Citations:

[1960] UKPC 6, [1960] 1 All ER 631, [1960] 1 WLR 223

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

CitedKhanum v Mid Glamorgan Area Health Authority EAT 1979
In a domestic tribunal such as that a disciplinary hearing, all that is required is that the three basic requirements of natural justice be fulfilled; namely (1) that the person should know the nature of the accusation against him or her; (2) that . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Natural Justice

Updated: 20 September 2022; Ref: scu.445344

Jeffs and Others v The New Zealand Dairy Production and Marketing Board and Others: PC 13 Oct 1966

(New Zealand)

Judges:

Viscount Dilhorne

Citations:

[1966] UKPC 22, [1967] 1 AC 551, [1967] 2 WLR 136, [1966] 3 All ER 863

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 20 September 2022; Ref: scu.445107

Chien Sing-Shou v The Building Authority: PC 12 Jun 1967

(Hong Kong) The Board considered the Hong Kong Architects’ Disciplinary Board which, by section 5 of the Buildings Ordinance 1955, comprised five members: three architects, the Building Authority or his representative, and ‘a legal adviser’. The appellant contended that any advice on matters of law by the legal adviser should have been given in the presence of the parties; and a failure to follow such a procedure was a breach of common law natural justice.
Held: Since the legal adviser was a full member of the board, if, during the deliberation of the board, he gave legal advice to the other members of the board on matters relating to the proceedings, then he stood in the same position as one of the architect members who gave a view on some matter of architectural opinion. In neither case was the member required to disclose to the parties the advice or opinion he had given in the private deliberations; unless, for example, some new point of law arose during the course of the deliberations, in respect of which it would be procedurally unfair to proceed without giving the parties an opportunity to comment.
Lord Morris of Borth-y-Gest, giving the judgment of the Privy Council, emphasised that: ‘At all times, however, the legal adviser occupies the position of being a full member of a body charged with the duty of acting judicially in making due enquiry.’

Judges:

Lord Morris of Borth-y-Gest

Citations:

[1967] UKPC 17, [1967] 1 WLR 1155, [1967] 2 All ER 1228

Links:

Bailii

Cited by:

CitedThe British Medical Association, Regina (on the Application of) v The General Medical Council and Another Admn 4-May-2016
The BMA sought to challenge the validity of the rules governing the procedure of Fitness to Practice panels. In particular the BMA challenged the new absence of a requirement that the panel’s legal advice and assistance be available to the parties. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Natural Justice

Updated: 20 September 2022; Ref: scu.445074

Wiseman v Borneman: HL 1971

The House was asked whether natural justice required that there be an oral hearing of a determination by a tax tribunal of whether there was a prima facie case.
Held: A refusal to examine evidence submitted to a tribunal initially when there was an opportunity for the same party later to examine the same was lawful.
The requirement of fairness should not degenerate into hard and fast rules and any additional steps to the statutory procedure must not frustrate the apparent purpose of the legislation. Lord Guest said that the principles ‘should be reasonably clear and definite’ and cases should not be ‘decided ex post facto on some uncertain basis.’
Lord Reid said: ‘Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.’

Judges:

Lord Reid, Lord Guest, Lord Morris

Citations:

[1971] AC 297, [1971] 3 All ER 275

Jurisdiction:

England and Wales

Cited by:

CitedSecretary of State for the Home Department v SP CA 21-Dec-2004
The applcant, a girl aged 17 was in a young offender institution. She complained that she had been removed to segregation without first giving her chance to be heard. The respondent argued that there were sufficient post decision safeguards to . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.

Administrative, Natural Justice

Updated: 07 September 2022; Ref: scu.223052

Flaherty v National Greyhound Racing Club Limited: ChD 8 Dec 2004

The claimant alleged that his case had been dealt with unjustly and in breach of natural justice by the respondents.

Judges:

The Hon Mr Justice Evans-Lombe

Citations:

[2004] EWHC 2838 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal fromFlaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
Lists of cited by and citing cases may be incomplete.

Contract, Natural Justice

Updated: 26 August 2022; Ref: scu.220214

Virdi v The Law Society: Admn 18 Feb 2009

The court dismissed the appeal of Mr Virdi from the findings and order of the Solicitors Disciplinary Tribunal finding him guilty of serious professional misconduct and suspending him from practice for a period of 3 years. The solicitor complained of the extent of the involvement of the clerk to the tribunal, an employee of the defendant, was involved in the conduct of proceedings, in particular in drafting the committee’s decision.
Held: The Tribunal had power to permit the clerk to retire with them when they considered their decision and to assist them by drafting part of the formal findings by virtue of rule 31(a).
Scott Baker LJ discussed the suggestion that the proceedings infringed his Article 6 rights, and found that 1. The SDT is entirely independent of the Law Society. The historical and financial connections are well documented as are the steps that have been taken to keep the two bodies separate.
2. The independence of the Tribunal is well established on the authorities.
3. The attack in the present case is not directly on the Tribunal but on the clerk, it being alleged that because she was employed by the Law Society that this in some way tainted the Tribunal’s decision because the Law Society was the prosecutor and neither party should have any connection with the Tribunal. Examination of the clerk’s position however shows that her employment by the Law Society (as with all Tribunal clerks) is not employment in the ordinary sense of the word but very much technical employment for remuneration purposes.
4. The clerk was not the decision maker, either by virtue of her position or on the particular facts of this case. Even taking the broadest view of what the independent and informed observer might think, I can see no basis for concluding that the Tribunal’s decision could be considered to be biased against the appellant.
5. Nothing the clerk did was improper. She was not in any way a party to the decision. She followed the ordinary administrative procedures adopted in other cases. She was entitled to assist in drafting the findings document which, in the event, was not in any way inconsistent with the extempore reasons give by the Chair on 26th October 2007.

Judges:

Scott Baker LJ and David Clarke J

Citations:

[2009] EWHC 918 (Admin)

Links:

Bailii

Statutes:

Solicitors (Disciplinary Proceedings) Rules 1994 31(a), European Convention on Human Rights 6

Cited by:

Appeal fromVirdi v The Law Society of England and Wales and Another CA 16-Feb-2010
The claimant solicitor complained that in disciplinary proceedings brought against him by the respondent, the clerk to the tribunal had drafted the judgment, even though she had been an emloyee of the respondent.
Held: The description of the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Natural Justice, Human Rights

Updated: 25 August 2022; Ref: scu.425526

KD (Inattentive Judges) Afghanistan: UTIAC 30 Jul 2010

UTIAC 1. The parties to an appeal are entitled to expect the Judge both to be alert during the hearing and to appear to be so. Consequently, if a Judge actually falls asleep or gives the appearance of not giving the appeal his full attention, there may be grounds for setting aside the determination on the basis that there has not been a fair hearing.
2. It is preferable for any concern about the behaviour or inattention of the Judge to be raised at the hearing.
3. When such a ground of appeal is raised, it is only likely to succeed if there is cogent evidence of the actual or apparent behaviour in question.

Judges:

Nicol J, Perkins SIJ

Citations:

[2010] UKUT 261 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Natural Justice

Updated: 22 August 2022; Ref: scu.421565

Collaku v Secretary of State for the Home Department: QBD 9 Nov 2005

Collins J criticised the system under which an applicant might be informed one day of his intended removal from the UK on the following day, saying: ‘The Home Office practice involving delay in deciding a claim but then of arresting and serving the refusal at one and the same time with a view to removal within a day or two, often at weekends and frequently early in the morning, is one that is to be deplored this court has deplored it on many occasions. It leads to unnecessary applications to the duty judge. It has the effect of preventing those who are to be removed from seeking proper legal advice to which they may be entitled and, even if the Home Office takes the view that there is no conceivable merit to be both found in any possible challenge, this is not the way to go about it. A reasonable time must be provided to enable representations to be made, if any are to be made, certainly to enable advice to be sought if the person to be removed wishes to obtain it. Quite apart from anything else, the approach to the duty judge will almost inevitably result in an order preventing the removal until the matter can be sorted out, either the following day or the next working day, when an application can be put before the Administrative Court. The result is that the flight ticket has to be given up — it is often more than one ticket because frequently an official will accompany the person to be removed — so public money is inevitably wasted.’

Judges:

Mr Justice Collins

Citations:

[2005] EWHC 2855 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedMedical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
Lists of cited by and citing cases may be incomplete.

Immigration, Natural Justice

Updated: 22 August 2022; Ref: scu.237826

Bahai v Rashidian: CA 1985

The claimant’s solicitor had given evidence in support of the claim and the judge had been very critical of that evidence. The defendant sought an order that the solicitor be jointly liable with his client for the defendant’s costs and the solicitor asked for the application to be heard by a different judge. The judge refused to make that order.
Sir John Donaldson MR said: ‘I accept that it must always be open to a judge to decline to proceed further with the hearing of any matter on the grounds that he is personally embarrassed by, for example, an appearance of bias. Subject to that, I have no doubt that it was the duty of (the trial judge) having heard and determined the issues in the action, himself to determine all applications as to the costs of the action . . the fact that a judge has determined the issues in the action and in doing so has expressed views on the conduct of the parties and of the witnesses, neither constitutes bias nor the appearance of bias in relation to subsequent applications in the action . . If the application can only be sustained by proof of serious misconduct or crime, the standard of proof should be higher than would otherwise be the case, but, subject to that, the application should be dealt with the same way as would any other application for costs against a solicitor.’
Parker LJ dissented as to the particular situation, but agreed as to the principles involved, saying: ‘Save in exceptional circumstances, it will be for the judge, who heard the case . . to determine the matter on a subsequent hearing . . there can be no doubt of this, the judge is dealing with the costs of an action which he has himself heard.’
Balcombe LJ said: ‘I accept that the judge has a discretion to direct that the application be heard by another judge, but the discretion is a judicial one, to be exercised in accordance with settled principles, of which one is undoubtedly that the application should be tried by the judge who heard the action unless there are compelling reasons to the contrary . . A judge properly exercising his judicial function, e.g. by criticising the conduct of a party’s solicitor in the course of his judgment on a matter which he considers relevant to his decision, cannot by that process be said to be biased. Bias is the antithesis of the proper exercise of a judicial function . . If such an application has to be heard by another judge, the procedure will lose its summary character. It will become even more expensive and time consuming than it is already, and the defendants are justified in their contention that the remedy of the party damnified by the solicitor’s misconduct will become illusory’.’

Judges:

Sir John Donaldson MR, Parker LJ, Balcombe LJ

Citations:

[1985] 1 WLR 1337

Jurisdiction:

England and Wales

Cited by:

CitedOtkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 21 August 2022; Ref: scu.537708

Regina v Liverpool City Justices ex parte Topping: 1983

When the Applicant appeared before the Justices, his solicitor submitted that the Justices should acknowledge that they were aware that in addition to the matter which they were about to try (that is to say an offence of criminal damage against a door) the Applicant was also facing six complaints of failing to answer to bail and one of being drunk in a public place, and with that knowledge, they should not continue to hear the allegation, as they would or might not be prejudiced by their knowledge from the court sheets of those outstanding charges.
Held: The test of whether there had been a fair hearing in a case of doubt ‘We conclude that the test to be applied can conveniently be expressed by slightly adapting the ‘words of Lord Widgery CJ in a test which he laid down in Reg v Uxbridge Justices, ex parte Burbridge apparently only reported in The Times June 20th, 1972, but referred to by him [in a later case]: Would ‘a reasonable and fair-minded person sitting in the court and’ knowing all the relevant facts have a ‘reasonable suspicion that a fair trial for’ the applicant ‘was not possible’.’

Judges:

Ackner LJ

Citations:

[1983] 1 WLR 119

Jurisdiction:

England and Wales

Citing:

CitedRegina v Uxbridge Justices, ex parte Burbridge 20-Jun-1972
When considering the fairness of a particular tribunal hearing a case, the test was whether ‘a reasonable and fair-minded person sitting in the court and’ knowing all the relevant facts have a ‘reasonable suspicion that a fair trial for’ the . .

Cited by:

CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Magistrates

Updated: 15 August 2022; Ref: scu.211434

Virdi v The Law Society of England and Wales and Another: CA 16 Feb 2010

The claimant solicitor complained that in disciplinary proceedings brought against him by the respondent, the clerk to the tribunal had drafted the judgment, even though she had been an emloyee of the respondent.
Held: The description of the clerk’s functions at showed that he had an essentially administrative role which, as in the case of the Executive officers in the present case, included drafting formal documents for the tribunal to adopt as it saw fit and drawing the tribunal’s attention to similar past cases.
‘The ultimate question is whether the proceedings in question were and were seen to be fair. If on examination of all the relevant facts, there was no unfairness or any appearance of unfairness, there is no good reason for the imaginary observer to be used to reach a different conclusion.’

Judges:

Jacob, Llyd, Stanley Burnton LJJ

Citations:

[2010] EWCA Civ 100, [2010] 1 WLR 2840, [2010] ACD 38, [2010] 3 All ER 653

Links:

Bailii

Statutes:

European Convention on Human Rights 6, Solicitors Act 1974 46

Jurisdiction:

England and Wales

Citing:

Appeal fromVirdi v The Law Society Admn 18-Feb-2009
The court dismissed the appeal of Mr Virdi from the findings and order of the Solicitors Disciplinary Tribunal finding him guilty of serious professional misconduct and suspending him from practice for a period of 3 years. The solicitor complained . .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .

Cited by:

CitedMehey and Others, Regina (on The Application of) v Visitors To The Inns of Court and Others CA 16-Dec-2014
The court was asked whether disciplinary proceedings against a number of barristers were invalid on the ground that some of the individuals who heard those proceedings or appeals therefrom were disqualified from sitting.
Held: The appeals . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Natural Justice, Human Rights

Updated: 14 August 2022; Ref: scu.400996

Easyjet Airline Co Ltd, Regina (on The Application of) v Civil Aviation Authority: CA 15 Dec 2009

The claimant appealed against rejection of its challenge to the respondent’s decision on charging structures for the use by airline of Gatwick airport, and in particular the alleged lack of adequate consultation by the respondent. After its own stated deadline for accepting representations from any party had passed, the defendant obtained and took into account material evidence from BAA explaining their underlying calculations for additional security costs. The defendant did not inform the airlines about this material, nor was there any opportunity to scrutinize or comment upon it.
Held: The appeal failed. The airlines had played a full part in the consultation process prior to the identified deadline. The process was not unfair and indeed the airlines were content for the defendant to complete the final stage of the process without any further input during which period further submissions were received upon which they did not comment.
Maurice Kay LJ said: ‘what fairness demands is dependent on the context of the decision.
The decision in the present case does not impact on personal liberty, a person’s home, the use which a property owner may make of his property or the right to conduct a business. Its context is the regulation by a statutory body of one aspect of the process charged by a private monopoly supplier to its customers . . the ultimate issue is not the provision or non provision of a service. It is simply the charge that may be levied by the airports per passenger
This puts the decision of the CAA at the ‘soft’ end of the spectrum . . fairness should reflect the context as I have described it. It is for this reason that I reject Mr Bear’s submission that the present case is on all fours with Eisai where the regulatory decision was effectively as to whether or not the company should be enabled to market their drug within the NHS. I see that as a significantly more intrusive decision which is more likely to attract a higher level of procedural fairness . .’

Judges:

Dyson, Maurice Kay, Rimer LJJ

Citations:

[2009] EWCA Civ 1361

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromEasyjet Airline Company Ltd v The Civil Aviation Authority Admn 26-Jun-2009
The claimant company chalenged the methods of claculation of its contribution to security costs at Gatwick airport. . .
DistinguishedEisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners) CA 1-May-2008
The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made . .

Cited by:

CitedSave Our Surgery Ltd, Regina (on The Application of) v Joint Committee of Primary Care Trusts Admn 7-Mar-2013
The claimants sought judicial review of the report prepared by the defendants under which departments providing childrens’ heart surgery at their regional hospital would close. They complained that the consultation had been inadequate and flawed. . .
Lists of cited by and citing cases may be incomplete.

Transport, Natural Justice

Updated: 11 August 2022; Ref: scu.384119

Osborn v The Parole Board: SC 9 Oct 2013

Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on licence but then recalled to custody. The other appeals (Booth and Reilly) were indeterminate sentence prisoners who have served their minimum terms.
Held: The appeals were allowed and a declaration given that the board breached its duty of procedural fairness to the appellant by failing to offer him an oral hearing, and was accordingly in breach of article 5(4) of the Convention.
The prisoners should have been given oral hearings. To comply with common law fairness requirements, an oral hearing should be provided whenever required by the importance of the issue or the particular facts. The circumstances requiring such a hearing cannot be defined. Such a system would satisfy the Human Rights requirements also. When a paper hearig takes place, the result is provisional, and an oral hearing is not an appeal.
Human Rights law is not a distinct area of law, but should be seen to permeat out legal system.
‘Whether a prisoner’s right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success, and thus involves circular reasoning.’
The court considered the rationale of procedural fairness at common law, and emphasised both the instrumental value of enabling persons to participate in decision-making when they may be able to contribute relevant information or to test other information before the decision-maker, and the ethical value of allowing persons to participate in decision-making which concerns them and is liable to have a significant effect on their rights or interests, where they may have something to say which is relevant to the decision to be taken.

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Reed

Citations:

[2013] UKSC 61, [2013] 3 WLR 1020, [2014] HRLR 1, [2013] WLR(D) 374, [2014] 1 All ER 369, UKSC 2011/0147

Links:

Bailii, Bailii Summary, SC Summary, SC, WLRD

Statutes:

Parole Board Rules 2004, Parole Board (Amendment) Rules 2009, Parole Board Rules 2011, Criminal Justice Act 2003, European Convention on Human Rights 5(4)

Jurisdiction:

England and Wales

Citing:

CitedWaite v The United Kingdom ECHR 10-Dec-2002
The claimant had been sentenced to be detained at Her Majesty’s pleasure when a youth. After release on licence, the Parole Board met and revoked that licence without an oral hearing, and in contravention of the rules. He did not dispute the facts . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
At first instanceOsborn v The Parole Board Admn 19-Mar-2010
The claimants complained that decisions had been made by the respondents without them having been first given a right to an oral hearing. They now sought permission to bring judicial review.
Held: Permission was refused. The facts in the . .
Appeal fromOsborn and Another v The Parole Board CA 15-Dec-2010
The three claimants complained that the respondent had made decisions adverse to them as to their release to or recall from parole.
Held: Review was refused. While there was ‘some force in the submission that, contrary to the understanding of . .
At First InstanceReilly, Re Judicial Review QBNI 13-Apr-2010
The claimant said that a decision had been made as to his release from prison but without his having had opportunity to make oral representations.
Held: The board had acted in breach of its common law duty to act fairly, and incompatibly with . .
At first instanceReilly, Re Judicial Review QBNI 10-May-2010
The court had found that the respondent had acted in breach of the claimant’s human rights in making a decision against his release from prison on parole without affording an opportunity to make oral representations. It now considered the remedy. . .
Appeal fromReilly, Re Judicial Review CANI 6-Apr-2011
The applicant had been granted judicial review of a decision by the parole board not to grant his release on parole but without having afforded him an oral hearing. The Board now appealed.
Held: The appeal succeeded. The court followed the . .
CitedThe Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
CitedSanchez-Reisse v Switzerland ECHR 21-Oct-1986
That a detainee may be heard either in person or, where necessary, through some form of representation can be a fundamental procedural guarantee in matters of deprivation of liberty. Article 5(4)was inspired by the English law of habeas corpus. . .
CitedKoendjbiharie v The Netherlands ECHR 25-Oct-1990
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings
Unsuccessful proceedings brought . .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedHatton and Others v The United Kingdom ECHR 8-Jul-2003
More Night Flights No Infringement of Family Life
The claimants complained that the respondent had acted to infringe their rights. They were residents living locally to Heathrow Airport. They claimed the respondent had increased the number of night flights, causing increased noise, but without . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedGuardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court and Another CA 25-Oct-2011
The claimant newspaper sought to appeal against a refusal by the respondent to disclose papers filed in a case before it. The court considered whether it had jurisdiction to hear an appeal.
Held: Under the 1981 Act no appeal would lie if the . .
CitedGuardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
CitedFaulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
CitedThe King v The Chancellor, Masters And Scholars of The University of Cambridge, Or Doctor Bentley’s Case 1748
Fundamental Right to Present a Defence
Fortescue J said: ‘The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon . .
CitedCooper v The Board of Works For The Wandsworth Destrict 21-Apr-1863
Where a land-owner owner had failed to give proper notice to the Board, the Board had, under the 1855 Act, power to demolish any building he had erected and recover the cost from him. The plaintiff said that the Board had used that power without . .
CitedGillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
CitedSecretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The . .
CitedRegina v Parole Board, Ex parte Bradley QBD 1990
A Parole Board should scrutinise ever more anxiously whether the level of risk is unacceptable on considering the release of a prisoner, the longer the time the prisoner has spent in prison following the expiry of his tariff. The Board had to carry . .
CitedRegina v Parole Board and Another ex parte Wilson CA 6-May-1992
It was natural justice to allow a discretionary lifer to see the reports which had been prepared for consideration on his application for release on licence. W had been sentenced to life imprisonment for buggery, and was a discretionary life . .
CitedHussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .
CitedCurley v United Kingdom ECHR 28-Mar-2000
A prisoner was sentenced to be detained during her majesty’s pleasure, but given a tariff which expired in 1987. Reviews of his continued detention did not lead to his release. He complained that the system of reviews by a Parole Board whose . .
CitedHL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
CitedRoose v The Parole Board and Another Admn 16-Jul-2010
If representations made in support of the prisoner’s request for an oral hearing raise issues which place in question anything in the provisional decision which may in practice have a significant impact on the prisoner’s future management in prison . .

Cited by:

CitedWhiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
CitedMoseley, Regina (on The Application of) v London Borough of Haringey SC 29-Oct-2014
Consultation requirements
The claimant challenged a decision of the respondent reducing the benefits under the Council Tax Reduction Scheme reducing Council Tax for those in need, saying that the Council’s consultation had been inadequate.
Held: The consultation was . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedZurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
CitedAustin, Regina (on The Application of) v Parole Board for England and Wales Admn 17-Jan-2022
Parole Board Publication Scheme Unduly Complicated
This claim for judicial review raises important issues about the lawfulness of the Parole Board’s policy and practice in relation to the provision of a summary of a Parole Board decision to victims and victims’ families and the media. The protocol . .
CitedElgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Prisons, Natural Justice, Human Rights

Updated: 07 August 2022; Ref: scu.516313

Regina (Karagoz) v Immigration Appeal Tribunal: QBD 12 May 2003

The asylum seeker appealed against a decision, saying the notice of hearing had not been received by him. The Immigration Appeal Tribunal rejected his appeal without consideration of his application on the merits and without giving him opportunity to be heard. The adjudicator said he had complied with the rules.
Held: Neither the applicant nor his solicitors acknowledged receipt of the notice, nor attended the hearing. The adjudicator took evidence of posting as rebuttable evidence of receipt. However the adjudicator had not made proper allowance for all the circumstances. It would have been wise at least to have obtained a better explanation of events, including as a minimum a call to the solicitors. On appeal against the decision the Immigration Appela tribunal had notice of assertions hat the notice had not been received. It made no finding on those assertions, but ignored them. That was unlawful, and if having considered the evidence it had concluded an appeal had a chance of success, he should have allowed the appeal.

Judges:

Wilson J

Citations:

Times 11-Jun-2003

Statutes:

Immigration and Asylum Appeals (Procedure) Rules 2000 (2000 No 2333) 30(2) 33

Jurisdiction:

England and Wales

Immigration, Natural Justice

Updated: 06 August 2022; Ref: scu.183686

Regina v Chelsea and Westminster Healthcare NHS Trust ex parte L: Admn 30 Oct 1997

In considering whether a complainant had had a fair hearing in a domestic tribunal, the court may consider the identity or status of an ‘outsider’ whose his identity or status, even though he remains silent, may operate to influence the tribunal. This might be where the ‘outsider’ has the power to decide whether the tribunal members hold office. The ‘brooding presence’ in this class of case gives rise to a challenge grounded on bias; actual bias if it is found that the silent presence influences the deliberations, or apparent bias if a fair minded and independent observer would conclude there was a real possibility of such influence occurring.

Judges:

Sedley J

Citations:

[1997] EWHC Admin 942

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedFlaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
Lists of cited by and citing cases may be incomplete.

Natural Justice

Updated: 06 August 2022; Ref: scu.137887

Browne v Dunn: HL 1893

Where counsel has with regard to a witness, ‘an intention to impeach the credibility of the story he is telling’, he must give that witness notice of his intention by putting that to him during cross examination, unless such intention was entirely clear from earlier circumstances.
Counsel who proposes to lead evidence of a material fact, must put that fact in cross-examination to any witness who might be expected to be able to confirm or deny the evidence. In order to give the witness the opportunity to confirm or deny it. A witness must be given a proper opportunity to answer a suggestion of dishonesty.
Where a solicitor receives information anticipating receiving instructions to act for a client, but then does not in fact reveive such instructions, nonetheless, those communications are protected against disclosure by legal advice privilege. Lord Herschell said: ‘It seems to me that when communications pass between a solicitor and those who he reasonably believes will desire to retain him, and to whom he makes a communication in relation to that, and who do retain him, the whole of those communications leading up to the retainer and relevant to it, and having that and nothing else in view, are privileged communications, that the whole occasion is throughout privileged. There is no authority, so far as I know, to the contrary, and it seems to me that to lay down any other doctrine would be very gravely contrary to the public interest.’
Lord Bowen said: ‘I myself have no doubt at all, in the absence of authority, that if a solicitor has reason to believe that his services may be required by a possible client who does afterwards retain him, what passes between the solicitor and the client on the subject of the retainer, and relevant to the retainer, is covered by professional privilege,’ and: ‘There is another and more serious point, a point of law, which I desire to keep open so far as my opinion is concerned. I very much doubt whether, when a professional relation is created between a solicitor and client, and communications pass between the solicitor and the client with reference to the prosecution of a third person, or with reference to proceedings being taken against him, the fact that the solicitor is animated by malice in what he says of the third person would render him liable to an action, provided he does not say anything which is outside what is relevant to the communications which he is making as solicitor to his client. I very much doubt whether malice destroys that kind of privilege, unless it is shown that what passed was not germane to the occasion.’
Lord Herschell LC said: ‘Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.’

Judges:

Lord Herschell LC, Lord Bowen

Citations:

[1893] 6 R 67

Jurisdiction:

England and Wales

Cited by:

CitedMore v Weaver CA 11-Jul-1928
The appellant brought the latest of several actions, this time alleging defamation in letters from the respondent to her own solicitors making certain statements about the appellant. Those letters had become public in the course of the earlier . .
CitedMBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The contempt application against Ms McGivern was dismissed and certified as being totally without merit.
The court does not grant injunctions to parties to litigation to be used as a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Natural Justice

Leading Case

Updated: 04 August 2022; Ref: scu.468829

Regina v Henworth: CACD 30 Jan 2001

There is no rule of law to say that a third trial taken as far as a jury decision was an abuse of process. Dicta that that was the case were obiter. The question of whether there was oppression was to be decided on the facts of each case.

Citations:

Times 30-Jan-2001

Jurisdiction:

England and Wales

Citing:

See AlsoHenworth v United Kingdom ECHR 2-Nov-2004
The claimant had been tried for murder, but had undergone two retrials. On the second he said there was a rule of law that a defendant should not be tried a third time after two juries had failed to agree a conviction. He refused to take any part . .

Cited by:

See AlsoHenworth v United Kingdom ECHR 2-Nov-2004
The claimant had been tried for murder, but had undergone two retrials. On the second he said there was a rule of law that a defendant should not be tried a third time after two juries had failed to agree a conviction. He refused to take any part . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Natural Justice

Updated: 03 August 2022; Ref: scu.88500

James v Tower Bridge Magistrates’ Court: Admn 9 Jun 2009

The claimant challenged the decisions of the magistrates first to convict him under the 1992 Act in his absence, and then to refuse to re-open the case. He had attended late on the trial date, after attending hospital overnight with his young daughter, and his solicitors had only received confirmation of the representation order one or two days before the hearing and could not represent him.
Held: The appeal succeeded and the convictions quashed. The court had misgivings about the accounts given, but the court had failed to enquire as to the reasons for the defence failures: ‘applying the principles stated in Jones and other cases, in my judgment there has been no fair trial, and the circumstances were such that an adjournment should have been granted.’

Judges:

Pill LJ, Cranston J

Citations:

[2009] EWHC 1500 (Admin)

Links:

Bailii

Statutes:

Social Security Administration Act 1992

Jurisdiction:

England and Wales

Citing:

CitedRegina v Camberwell Green Magistrates’ Court ex parte Ibrahim 1984
Taylor J said: ‘In my judgment, it is unfair and contrary to the interests of justice that simply because the applicant arrived half an hour late, she should be barred for ever from raising such defence as she wishes to what could be regarded as a . .
CitedRegina v Jones (Anthony William) HL 20-Feb-2002
The defendant absconded, and did not appear for his trial despite several listings. The trial proceeded in his absence entirely. After arrest, he appealed, saying that he had not had a fair trial.
Held: It was not suggested that he did not . .
Lists of cited by and citing cases may be incomplete.

Magistrates, Natural Justice

Updated: 30 July 2022; Ref: scu.347474

Lewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another: PC 12 Sep 2000

(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, and the necessary disclosures to be made. Such a petition should be the last step in the process, and should not be complete until other international bodies had considered applications to them. In this case also the extent of delay was sufficient to constitute unusual and inhuman treatment. The constitutional guarantee of ‘due process of law’ and the right to ‘the protection of the law’ are equivalent.
Dissenting, Lord Hoffmann drew attention to the evils which would follow if the power to overrule previous decisions of the Privy Council were exercised too readily.

Citations:

Times 11-Oct-2000, [2000] UKPC 35, [2001] 2 AC 50, [2000] 3 WLR 1785

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

CitedKanda v Government of the Federation of Malaya PC 2-Apr-1962
A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the . .
CitedMitchell v WT Grant Company 13-May-1974
(Supreme Court of the USA) Stewart J said: ‘A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the . .
CitedPlanned Parenthood of Southeastern Pennsylvania v Casey 29-Jun-1992
(Supreme Court of the USA) The Court discussed the grounds upon which it would depart from precedent and why it would not overrule its equally controversial decision on abortion in Roe v. Wade.
Held: ‘no judicial system could do society’s work . .

Cited by:

CitedHaroon Khan v The State PC 20-Nov-2003
PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
CitedHer Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor) PC 28-Jun-2005
(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
CitedMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Natural Justice, Commonwealth, Constitutional

Updated: 25 July 2022; Ref: scu.159423

Errington v Wilson: SCS 16 Jun 1995

The court considered the need for a party to be given opportunity to cross examine witnesses: ‘In the present case the prejudice which resulted from the refusal to allow cross examination is self evident. There was a difference of opinion between experts on points which were crucial to a sound determination of the questions which the justice had to decide. The result of her refusal to allow cross examination was that the evidence of the second respondents’ witnesses could not be challenged in the only manner which was likely to be effective in a case of such difficulty. So I consider that the Lord Ordinary was well founded in his decision that by refusing to allow cross examination in these circumstances the justice disabled herself from reaching a fully informed conclusion upon the evidence. This amounted to a denial of natural justice to the petitioner, as her duty to act fairly in this case required her to permit cross examination of the second respondents’ witnesses.
The answer to that question must in the end depend upon the circumstances. In my opinion it is clear from the facts in this case that the justice could not decide whether the cheese failed to comply with food safety requirements without examining the evidence of the expert witnesses. We were not referred in detail to their evidence, but the documents which were shown to us indicate that important questions were raised by the petitioner’s expert about the reliability of the evidence of the second respondents’ witnesses. The nature of these questions was such that they could not be answered without a detailed study and understanding of the witnesses’ evidence. Counsel for the second and third respondents submitted that the point which was being made by these witnesses was a simple one. There were no statutory guidelines, but they said that the matter could be decided by the application of the PHLS Guidelines which did not give rise to any questions of difficulty. But the application of those guidelines to this case was disputed, and the justice could not decide that issue fairly between the parties without examining the detail of their evidence.

In a case of this difficulty there was an obvious risk of unfairness if the second respondents’ witnesses were not open to cross examination on the detail of their evidence. There was a risk that defects in that evidence would lie undetected, and that the justice would not be informed about the issues which she had to decide. It is no answer to this point to say that she put both parties on an equal footing by denying to both of them the opportunity of cross examining each other’s witnesses. Nor is it an answer to say that the public have an interest in food safety. The consequences for the petitioner and his business were likely to be very serious if the case went against him, and he had a right under the statute to attend and to call witnesses. The issues which the petitioner’s representative wished to raise in cross examination were issues on which the petitioner wished to be heard. These were issues which he wished to raise by way of challenge to the evidence of the second respondents’ expert witnesses. The unfairness to him lay in the denial to him of the opportunity of opening up these issues by putting questions about them directly to the second respondents’ expert witnesses.’

Judges:

Lord President (Hope), Lord Allanbridge and Lord Clyde

Citations:

[1995] ScotCS CSIH – 2, 1995 SC 550, 1995 SLT 1193, 1995 SCLR 875

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice, Natural Justice

Updated: 22 July 2022; Ref: scu.279579

Sadler v The General Medical Council: PC 15 Jul 2003

(The Committee on Professional Performance of the GMC) The distinction drawn in Krippendorf between a practitioner’s current competence and past performance was not to be taken too far. The purpose of the assessment was not to punish the practitioner, but to protect the public. The standard of proof was accordingly the civil standard of balance of probabilities. The Board considered the role of members of the GMC sitting as panel members of its Committee on Professional Performance. It was argued that the presence of GMC members on the CPP panels was contrary to the domestic doctrine of apparent bias or to ECHR article 6.
Held: Lord Hope pointed out that there is no general principle of Convention jurisprudence which prevents such self-regulation and that everything depended on all the relevant circumstances. As to the relevant rules and the protection afforded by them, their Lordships were satisfied that the CPP met the Convention requirements.

Judges:

Lord Rodger of Earsferry, Lord Walker of Gestingthorpe, Sir Phillip Otton

Citations:

[2003] UKHL 59, Times 29-Sep-2003, [2004] Lloyd’s Rep Med 44, [2004] HRLR 8, [2003] 1 WLR 2259

Links:

Bailii, PC, PC

Statutes:

European Convention on Human Rights

Jurisdiction:

Commonwealth

Citing:

CitedDr Manjula Krippendorf v The General Medical Council PC 24-Nov-2000
(Reasons for report) When the Committee of Professional Performance was considering the standard of professional practice of a doctor, the committee should consider his actual record of practice as disclosed from the records of his practice, and . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedMcAllister v General Medical Council PC 3-Feb-1993
English law had been correctly applied in GMC disciplinary proceedings even though they were heard in Scotland. . .
CitedLe Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
CitedBryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .

Cited by:

CitedKaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights, Natural Justice

Updated: 19 July 2022; Ref: scu.185170

Davidson v Revenue and Customs: Excs 25 Jul 2008

VDT EXCISE – seizure of vehicle and goods – whether seizure challenged – restoration refused – whether appeal against non-restoration of vehicle – whether decision not to restore goods proportionate – whether appellant entitled to raise issue of own use – whether abuse of process – No
JURISDICTION – Whether criminal charge – Whether Magna Carta and Bill of Rights 1689 applicable – Whether Appellant denied right to a fair trial – Gora considered – Appeal dismissed.

Citations:

[2008] UKVAT-Excise E01127

Links:

Bailii

Statutes:

Finance Act 1994 14(3), Tobacco Products Duty Act 1979 1(1), Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002, Alcoholic Liquor Duties Act 1979 Sch 36, Beer Regulations 1993 (SI 1993/1228) 15, Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 4, Customs and Excise Management Act 1979 49(1), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

CitedBowles v Bank of England KBD 4-Nov-1912
The House of Commons Ways and means committee resolved to assent to the imposition of income tax at the required rate for the next year.
Held: Such a resolution was inadequate to authorise the Crown to levy the tax by its deduction from the . .
CitedWeller v Revenue and Customs VDT 30-Apr-2008
VDT EXCISE – RESTORATION – payment when restoration not possible – amount of payment – goods purchased on cross-channel ferry – ferry operator used simplified scheme under Article 7(9), EU Council Directive 92/12 . .
CitedGascoyne v Customs and Excise and Another CA 28-Jul-2004
The Commissioners had found what they considered to be an excess of dutiable goods brought into the country by the tax payer, and had forfeited the car. The court considered the effect of the Gora case.
Held: The difficult statements in Gora . .
CitedCommissioners of Customs and Excise v Dickinson ChD 15-Oct-2003
The applicant had returned to England with a quantity of goods which the Customs and Excise deemed were not for his personal use. His car was seized, but ordered to be restored by the VAT and Duties Tribunal.
Held: There was now a two track . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, Human Rights, Natural Justice

Updated: 19 July 2022; Ref: scu.273034

(Un-named): SSCS 18 Jan 1993

Tribunal practice – reliance on specialist knowledge of tribunal member not disclosed to the parties – whether breach of the rules of natural justice
The claim was in respect of invalidity benefit. On 8 August 1989 an adjudication officer decided on review that from 22 August 1989 the claimant had not proved that he was incapable of work. The SSAT upheld the decision of the AO following advice from a tribunal member who had experience of work carried out by handicapped people. The claimant appealed to the Commissioner.
Held that:
the AO and SSAT misdirected themselves on the onus of proof. On review and revision of an award the onus is on the AO to establish incapacity for work (para. 3);
there was a breach of natural justice because the specialist knowledge of the member of the tribunal was not presented as evidence. The claimant’s representative was not given the opportunity to comment;
because of their inquisitorial role SSATs are not bound by the strict rules of evidence. Members are not restricted to drawing on expertise to elevate evidence. Unlike justices, who exercise a wholly judicial function, they may present evidence on the tribunal based on personal knowledge;
it was open to the member of the tribunal to speak of specialist knowledge which was in the nature of evidence. This evidence should however have been presented at the hearing where all parties would have the opportunity to challenge it. It must not be given to the tribunal in the privacy of their deliberations (para. 4).
The Commissioner set aside the decision of the tribunal and remitted the appeal to be heard by a differently constituted SSAT (para. 5).

Citations:

[1993] UKSSCSC CS – 142 – 1991

Links:

Bailii

Jurisdiction:

England and Wales

Benefits, Natural Justice

Updated: 15 July 2022; Ref: scu.269500

Cantillon Ltd v Urvasco Ltd: TCC 27 Feb 2008

After referring to the Carillion Construction case, the court held: ‘Whilst that case is, obviously, not authority for the proposition that a ‘good’ challenge to a decision on jurisdiction or natural justice grounds will be excluded on some statistical basis, a challenge on these grounds must be plain, clear and relatively comprehensible. In a case such as the present, the Adjudicator, albeit experienced, had a mass of conflicting evidence and argument to take on board. The Court should not take an over-analytical approach to questions of jurisdiction and natural justice arising in adjudications under the HGCRA 1996.’ Akenhead J then considered the law relating to natural justice in the context of adjudications, and concluded: ‘From this and other cases, I conclude as follows in relation to breaches of natural justice in adjudication cases: (a) It must first be established that the Adjudicator failed to apply the rules of natural justice;
(b) Any breach of the rules must be more than peripheral; they must be material breaches;
(c) Breaches of the rules will be material in cases where the adjudicator has failed to bring to the attention of the parties a point or issue which they ought to be given the opportunity to comment upon if it is one which is either decisive or of considerable potential importance to the outcome of the resolution of the dispute and is not peripheral or irrelevant.
(d) Whether the issue is decisive or of considerable potential importance or is peripheral or irrelevant obviously involves a question of degree which must be assessed by any judge in a case such as this.
(e) It is only if the adjudicator goes off on a frolic of his own, that is wishing to decide a case upon a factual or legal basis which has not been argued or put forward by either side, without giving the parties an opportunity to comment or, where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case of Balfour Beatty Construction Company Ltd -v- The Camden Borough of Lambeth was concerned comes into play. It follows that, if either party has argued a particular point and the other party does not come back on the point, there is no breach of the rules of natural justice in relation thereto.’

Judges:

Akenhead J

Citations:

[2008] EWHC 282 (TCC), [2008] CILL 2564, [2008] BLR 250, 117 Con LR 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedCarillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .

Cited by:

CitedCRJ Services Ltd v Lanstar Ltd (T/A CSG Lanstar) TCC 19-Apr-2011
The claimant hired out recycling plant and equipment and the defendant had been a customer. A local agent of the defendant had properly entered into certain contracts with the claimant acting as the company’s agent, but then created three long term . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Arbitration

Updated: 13 July 2022; Ref: scu.265966

Duffy, Re: HL 30 Jan 2008

The claimant sought judicial review of a decision to appoint two new members to the parades commission. His request succeeded at first instance, but had failed on appeal. He complained that letters inviting proposals for membership were sent to protestant organisations, but none went to nationalist groups including the residents association which he represented in a catholic area.
Held: The request succeeded. No Secretary of State could reasonably have confirmed the appointments made. The people appointed were so committed to one side of the community that they could not act with sufficient independence. The commission is not a court but it has a duty to seek to resolve contentious disputes by mediation where this is possible and, where it is not, to make determinations which will, so far as may be, reconcile the wishes of those who wish to parade with the wishes of those who do not wish to be intimidated, insulted or inconvenienced. These are not judicial tasks, but they are tasks which can only be satisfactorily performed by a body which is accepted by both parties as independent, objective and impartial in its approach. The two people appointed ‘had both been very prominent and committed proponents of the loyalist parade from Drumcree along the Garvaghy Road to Portadown. When appointed neither had resigned from the bodies to which they belonged and neither gave any recorded indication that he had changed his allegiance. No reasonable person, knowing of the two appointees’ background and activities, could have supposed that either would bring an objective or impartial judgment to bear on problems raised by the parade in Portadown and similar parades elsewhere. There is nothing in the papers which suggests that the interviewing panel recognised this problem at all, and I share the judge’s doubt, expressed in paragraph 16 of his judgment, whether they understood the nature of the task on which they were engaged. ‘

Judges:

Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2008] UKHL 4

Links:

Bailii

Jurisdiction:

Northern Ireland

Citing:

Appeal fromDuffy, Re Application for Judicial Review CANI 9-Jun-2006
. .
Appeal fromDuffy, Re Application for Judicial Review CANI 9-Jun-2006
The claimant had sought judicial review of decisions to appoint new members of the parades commission, saying that preferences had been given to protestant groups who might send applicants.
Held: The defendants appeal succeeded, and the review . .
CitedWhite, Application for Judicial Review QBNI 18-May-2000
. .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Judicial Review, Natural Justice

Updated: 13 July 2022; Ref: scu.264022

Metropolitan Properties Company (FGC) Limited v Lannon: 11 Jul 1968

Tenants of apartments asked the Rent Officer to fix the fair rents. On appeal, the rents were then set at a rate lower even than they had requested. The rents would serve as a guide for other local rents. The landlords now complained that the chairman of the Rent Assessment Committee had been assisting his own father in negotiating a rent for such a local property, and had represented other tenants. They complained of bias.
Held: He should not have sat. It was accepted that he had had no pecuniary interest himself, and had acted scrupulously. It was a question of whether there was any appearance of bias.
Lord Denning MR considered the test for apparent bias, and said: ‘The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.’

Judges:

Lord Denning MR, Danckwerts LJ, Edmund Davies LJ

Citations:

[1968] RVR 490, [1968] EWCA Civ 5, [1968] 3 All ER 304, [1968] 3 WLR 694, (1968) 19 P and CR 856, [1969] 1 QB 577

Links:

Bailii

Statutes:

Rent Act 1965

Cited by:

CitedRegina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
Lists of cited by and citing cases may be incomplete.

Housing, Natural Justice

Updated: 12 July 2022; Ref: scu.260119

Secretary of State for the Home Department v AF AN and AE (No 3): HL 10 Jun 2009

The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The material was withheld in the interests of national security.
Held: The failure to supply the defendants with the information infringed their human rights. They were left unable to give effective instructions to enable them to defend themselves through the special advocate. The open material contained only general assertions, and the case depended to a decisive degree on the closed material. In a hearing under the section, the court had to consider not only whether enough had been disclosed to conform with the requirements set down in A v UK, but also whether any other matter not disclosed was essential to the farness of the trial. The judicial committee was bound to apply a clear statement of principle by the Grand Chamber in respect of the precise issue that was before the Committee: ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’
Lord Phillips of Worth Matravers discussed a recent decision of the Strasbourg Court saying that it: ‘establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations’.
Lord Hoffmann said that the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision.

Judges:

Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Citations:

[2009] UKHL 28, Times 11-Jun-2009, [2009] 3 WLR 74, [2009] HRLR 26, [2009] 3 All ER 643, [2009] WLR (D) 180, 26 BHRC 738, [2010] 2 AC 269

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights , Prevention of Terrorism Act 2005 3(10), Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

CitedA and Others v The United Kingdom ECHR 21-Jan-2008
The court addressed the extent to which the admission of closed material was compatible with the fair hearing requirements of article 5.4, challenging lawfulness of detention, which imported the same rights as article 6.1 in its criminal aspect. The . .
See AlsoSecretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .

Cited by:

CitedSecretary of State for the Home Deparment v AN Admn 31-Jul-2009
The court re-considered a control order made on the basis of material withheld from the defendant. The Secretary of State had now withdrawn his reliance on that material, rather than make further disclosures. The prosecution invited the court to . .
CitedTariq v The Home Office EAT 16-Oct-2009
EAT PRACTICE AND PROCEDURE
Disclosure
HUMAN RIGHTS
(1) The procedure sanctioned by rule 54 of the Employment Tribunals Rules of Procedure, and by the Employment Tribunals (National Security) Rules . .
CitedRegina v KS CACD 17-Nov-2009
The jury had been discharged by the judge after finding jury tampering, and he decided to continue alone. The jury had not known of the earlier convictions of others involved in the alleged conspiracy, but the judge did and he had made reference to . .
CitedAl Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
CitedHorncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
CitedBank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
CitedS v Northampton Crown Court and Another Admn 7-May-2010
S faced serious charges of defrauding Customs and Excise. After allegations of jury tampering came to light, a decision was made for trial by judge alone, and his bail was revoked. He now sought judicial review of the refusal of bail. He challenged . .
CitedChief Constable and Another v YK and Others FD 6-Oct-2010
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
CitedHome Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
CitedBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
CitedHaralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
CitedReprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .
CitedQX v Secretary of State for The Home Department Admn 15-May-2020
Challenge to Temporary Exclusion Order.
Held: The concept of ‘civil rights and obligations’ cannot be interpreted solely by reference to national law but has an autonomous meaning within article 6(1) . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights, Natural Justice

Updated: 10 July 2022; Ref: scu.346821

Sellar v Highland Railway Co (No.1): HL 24 Jan 1919

The House considered whether a judge should recuse himself in a case involving a company in which he owned shares.

Judges:

Lord Buckmaster

Citations:

[1919] UKHL 1, 1919 1 SLT 149, 1919 SC (HL) 19

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

CitedKaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Natural Justice

Updated: 09 July 2022; Ref: scu.279678

Regina v The Joint Committee on Surgical Training ex parte Milner: Admn 4 May 1994

The court rejected the applicant’s complaint about the non-disclosure of his tutors’ reports upon his surgical abilities on the footing that he ‘has not demonstrated that the evidence on which the [advisory committee] relied is amenable to any significant challenge or any challenge which would have made any difference to the outcome.’ The undisclosed reports contained essentially expressions of opinion rather than disputed matters of fact; the applicant ‘might have vigorously dissented from them, but could not in any sensible way have corrected them.’ Effective and fair consultation does not require the disclosure of information of a kind that is not ‘amenable to any significant challenge or any challenge that would have made any difference to the outcome’

Judges:

Ognall J

Citations:

[1994] 7 Admin LR 754

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Natural Justice

Updated: 08 July 2022; Ref: scu.211436

Smith v North East Derbyshire Primary Care Trust: CA 23 Aug 2006

The cliamant had challenged a decision by the respondent on the method of provision of general practioner medical services in her village. She said that the procedure had been flawed in that the consultation had been inadequate.
Held: Her appeal succeeded. May LJ, summarising the authorities as to whether a procedural unfairness was significant, said: ‘Probability is not enough. The defendant would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of the decision.’

Judges:

May, Keene LJJ

Citations:

[2006] EWCA Civ 1291, [2006] 1 WLR 3315

Links:

Bailii

Statutes:

Health and Social Care Act 2001 11(1)

Jurisdiction:

England and Wales

Citing:

Appeal fromSmith v North East Derbyshire Primary Care Trust and Another Admn 15-Jun-2006
The claimant sought to challenge the respondent’s decision to appoint a company based in the US to provide general practitioner medical services to two local villages. . .

Cited by:

CitedShoesmith, Regina (on The Application of) v OFSTED and Others CA 27-May-2011
The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She . .
CitedSave Our Surgery Ltd, Regina (on The Application of) v Joint Committee of Primary Care Trusts Admn 7-Mar-2013
The claimants sought judicial review of the report prepared by the defendants under which departments providing childrens’ heart surgery at their regional hospital would close. They complained that the consultation had been inadequate and flawed. . .
CitedMR, Regina (on The Application of) v The Secretary of State for The Home Department Admn 10-Mar-2017
The claimant challenged the use of the Royal Prerogative to withdraw his passport. He had as a youth been involved with a terrorist organisation, but said that he now regretted that and was no longer so involved. He had sought to set up a business, . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Natural Justice

Updated: 07 July 2022; Ref: scu.245342

Gardner, Regina (on the Application of) v Parole Board: CA 5 Sep 2006

The prisoner challenged his exclusion from a parole board hearing whilst evidence was taken. He was serving a long sentence for a violent attack, and had re-offended only shortly after his release. His ex-wife had been unwilling to confront him, and he had been excluded whilst she gave evidence.
Held: The appeal failed: ‘The short procedural code set out in Rule 19 contains the essential features of fairness but it is obviously not designed to deal expressly with every eventuality and so is couched in flexible rather than absolute language. It is similar to the procedural rules for other tribunals which are designed to confer the widest possible procedural discretion to enable the tribunal to discharge its duties.’
The Rules do give a panel power to exclude a prisoner whilst a witness is giving evidence in circumstances such as those which arose in this case. The applicant had known what evidence was to be given, it was given in the presence of his own counsel who had opportunity to test her evidence in cross examination.

Judges:

Mummery LJ, Tuckey LJ, Wilson LJ

Citations:

[2006] EWCA Civ 1222, Times 29-Sep-2006

Links:

Bailii

Statutes:

Prison Rules 2004 19

Jurisdiction:

England and Wales

Citing:

CitedRoberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Appeal fromGardner, Regina (on the Application Of) v the Parole Board Admn 21-Dec-2005
The court considered whether a parole review board can exclude the prisoner from part of a hearing and if so on what grounds.
Held: The parole board had the required power. Both Rule 19 (2) and 19 (3) gave the panel the power which they . .
CitedD (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
Lists of cited by and citing cases may be incomplete.

Prisons, Natural Justice

Updated: 07 July 2022; Ref: scu.244809

Smith v North East Derbyshire Primary Care Trust and Another: Admn 15 Jun 2006

The claimant sought to challenge the respondent’s decision to appoint a company based in the US to provide general practitioner medical services to two local villages.

Judges:

Collins J

Citations:

[2006] EWHC 1338 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal fromSmith v North East Derbyshire Primary Care Trust CA 23-Aug-2006
The cliamant had challenged a decision by the respondent on the method of provision of general practioner medical services in her village. She said that the procedure had been flawed in that the consultation had been inadequate.
Held: Her . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Natural Justice

Updated: 06 July 2022; Ref: scu.242560

Kearney v Her Majesty’s Advocate: PC 6 Feb 2006

(High Court of Justiciary Scotland) The Board considered the assessment of the independence of a judge.
Held: Lord Carswell said that independence has a separate significance, apart from ensuring impartiality between the parties to the cause, for it is also required to protect the judge from dependence upon, and against interference by, the Executive, whether the latter is a party to the litigation or not.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC D1, [2006] HRLR 15, 2006 GWD 15-284, 20 BHRC 157, 2006 SLT 499, 2006 SCCR 130

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

CitedMisick and Others v The Queen PC 25-Jun-2015
Turks and Caicos – The appellants, a former Chief Minister and others, faced a trial on charges of corruption. They objected that the Justice set to hear the case had insufficient security of tenure to guarantee independence, and that the same judge . .
Lists of cited by and citing cases may be incomplete.

Crime, Natural Justice, Human Rights

Updated: 05 July 2022; Ref: scu.238742

AMEC Capital Projects Ltd v Whitefriars City Estates Ltd: CA 28 Oct 2004

Alleged bias and procedural unfairness by an adjudicator appointed to determine a dispute in relation to a construction contract.
Held: The principles of the common law rules of natural justice and procedural fairness were two-fold. A professional person acting as arbitrator is bound by the principles of natural justice just as would be a judge in court. However, since the appointment itself was invalid, the decision was not open to challenge on this basis. The decision of an adjudicator as to his own standing was of no effect, and therefore a party was not affected by his decision.

Judges:

Kennedy LJ, Chadwick LJ, Dyson LJ

Citations:

[2005] BLR 1, [2004] EWCA Civ 1418, Times 08-Nov-2004, [2004] EWCA Civ 1535

Links:

Bailii, Bailii

Statutes:

Housing Grants, Construction and Regeneration Act 1996

Jurisdiction:

England and Wales

Citing:

Appeal fromAMEC Capital Projects Ltd v Whitefriars City Estates Ltd TCC 27-Feb-2004
. .
CitedLocabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
CitedLondon Borough of Ealing and others v Jan CA 7-Feb-2002
Appeal from findings of breaches of injunctions. . .
See AlsoAMEC Capital Projects Ltd v Whitefriars City Estate Ltd TCC 19-Sep-2003
Application to enforce adjudicators award, and application to stay same. . .

Cited by:

CitedCarillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
CitedCarillion Construction Ltd v Devonport Royal Dockyard TCC 26-Apr-2005
Application for leave to appeal against arbitrator’s award in construction dispute.
Held: The appeal was declined. . .
CitedHenry v London Metropolitan University EAT 19-Sep-2006
EAT The Appellant was found by the Tribunal to have been victimised and discriminated against in three respects; in two cases at the hands of Mr Williams who commenced disciplinary proceedings against him and in . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration, Natural Justice

Updated: 27 June 2022; Ref: scu.218864

Lawal v Northern Spirit Ltd: EAT 15 Feb 1999

The appellant wished to pursue an appeal against the striking out of his claim, and objected that contrary to the Rules, a member of the board who had heard the pre-hearing review had also sat on the full hearing.
Held: The appeal should be allowed to go ahead.

Judges:

Charles J

Citations:

[1999] UKEAT 1170 – 98 – 1502

Links:

Bailii

Statutes:

Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 7(9) 11

Cited by:

Application for leaveLawal v Northern Spirit Ltd EAT 6-Oct-1999
The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
Held: There was no real possibility of bias from this scenario. . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2001
. .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal. . .
See alsoLawal v Northern Spirit Ltd CA 15-Jan-2002
Application for leave to appeal . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
. .
See AlsoAA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
See AlsoLawal v Northern Spirit Ltd CA 30-Oct-2002
. .
See AlsoLawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
See AlsoLawal v Northern Spirit Ltd CA 19-Feb-2004
. .
Lists of cited by and citing cases may be incomplete.

Employment, Natural Justice

Updated: 14 June 2022; Ref: scu.204843

(Un-named) (CSA): SSCS 17 Mar 1997

Maintenance assessment – effective date – whether maintenance enquiry form sent to the absent parent when properly addressed, pre-paid and posted
Natural justice – whether the withholding of relevant evidence from an appeal tribunal by a child support officer renders the decision of the tribunal erroneous in law

Citations:

[1997] UKSSCSC CCS – 12682 – 1996

Links:

Bailii

Statutes:

Child Support Act 1991 4, Child Support (Maintenance Assessment Procedure) Regulations 1992 30(2)(a)

Jurisdiction:

England and Wales

Child Support, Natural Justice

Updated: 11 June 2022; Ref: scu.197458

Regina v Parole Board and Another ex parte Wilson: CA 6 May 1992

It was natural justice to allow a discretionary lifer to see the reports which had been prepared for consideration on his application for release on licence. W had been sentenced to life imprisonment for buggery, and was a discretionary life prisoner. The report iindicated that he might still be a risk if released on licence.
Held: He could not make use of the right to make representations if he was not told of the allegations against him. Natural justice required that he be given the information.

Judges:

Taylor LJ

Citations:

Gazette 06-May-1992, [1992] QB 740, [1992] 2 WLR 707

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Chief Constable of North Wales Police and Others Ex Parte Thorpe and Another; Regina v Chief Constable for North Wales Police Area and others ex parte AB and CB CA 18-Mar-1998
Public Identification of Pedophiles by Police
AB and CB had been released from prison after serving sentences for sexual assaults on children. They were thought still to be dangerous. They moved about the country to escape identification, and came to be staying on a campsite. The police sought . .
AdoptedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedRoberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
ApprovedRegina v Secretary of State for Home Department Ex Parte Hickey and Others, Same Ex Parte Bamber; Same Ex Parte Malone (No 2) QBD 29-Nov-1994
The Home Secretary is obliged to disclose new evidence to a defendant before rejecting his application for a reference to Court of Appeal. The Home Secretary’s powers to refer a case back to the Court of Appeal (Criminal Division) was an integral . .
CitedBrooke and Others, Regina (on the Application of) v The Parole Board and Another CA 1-Feb-2008
The claimant prisoner complained that the Parole Board was insufficiently independent of government to provide a fair hearing. The court at first instance had found that the relationship between the Parole Board and the sponsoring Department put the . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Lists of cited by and citing cases may be incomplete.

Prisons, Natural Justice

Updated: 11 June 2022; Ref: scu.87525

Georgiou v London Borough of Enfield; Cygnet Healthcare Ltd, Rainbow Developments, J Patel: Admn 7 Apr 2004

The claimant sought to challenge a decision of the council to grant a Listed Building consent. Members who decided the applications had also been members of the Council’s Conservation Advisory Group which had held a meeting before the Planning Committee’s meeting in which the forthcoming applications had been considered and voted on. This was said to give rise to an appearance of bias.
Held: The challenge succeeded. The court applied the Porter v Magill test of apparent bias widely: ‘ I therefore take the view that in considering the question of apparent bias in accordance with the test in Porter v Magill, it is necessary to look beyond pecuniary or personal interests and to consider in addition whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult. I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether.’ and ‘ I take the view, though not without a degree of hesitation, that a fair-minded and informed observer would conclude that there was a real possibility of bias, in the sense of the decisions being approached with closed minds and without impartial consideration of all the planning issues, as a result of the support expressed by the CAG being carried over into support for the application in the context of the planning committee’s decisions.
The fact that one of those with dual membership had received no training in planning matters reinforces that concern. So does the fact that all three of those with dual membership who had attended the CAG meeting on 27 May voted in favour of the applications.’

Judges:

Mr Justice Richards

Citations:

[2004] EWHC 779 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedScrivens v Ethical Standards Officer Admn 11-Apr-2005
The councillor appealed an adjudication that he had failed adequately to declare an interest at a meeting of the council. The officer thought the duty to withdraw was entirely objective, the applicant that it was a matter for his honest judgment. At . .
CitedPort Regis School Ltd, Regina (on the Application of) v Gillingham and Shaftesbury Agricultural Society Admn 5-Apr-2006
Complaint was made that the decision of a planning committee had been biased because of the presence on the committee of two freemasons, and where the interests of another Lodge were affected.
Held: The freemasonry interests had been declared. . .
CitedIsland Farm Development Ltd, Regina (on the Application of) v Bridgend County Borough Council Admn 25-Aug-2006
The claimant applied for a review of a decision by the respondent council not to sell it land.
Held: The challenge failed. The councillors had acted in accordance with advice given to them by officers, and ‘the committee was concerned only to . .
Lists of cited by and citing cases may be incomplete.

Planning, Local Government, Natural Justice

Updated: 10 June 2022; Ref: scu.195492

Stanley Cole (Wainfleet) Ltd v Sheridan: CA 25 Jul 2003

The employment tribunal, in delivering its judgment had cited a decision which was not among those referred to by the parties, but it did not give an opportunity to them to comment on it before delivering its decision.
Held: Such an ommission was a defect in procedure, and potentially a serious one. However in this case, it was not shown that the case referred to had had any significant impact on the decision, and therefore the original decision stood. The right to a fair hearing requires notice of all material matters of fact and law to be given to the parties. A mere procedural failure will not normally allow a review. Each such case must stand on its own facts.

Judges:

Lord Justice Ward, Lord Justice Buxton And Lord Justice Mance

Citations:

[2003] EWCA Civ 1046, Times 05-Sep-2003, Gazette 02-Oct-2003, [2003] 4 All ER 1181, [2003] IRLR 885, [2003] ICR 1449

Links:

Bailii

Statutes:

Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001 Sch1-13(1)

Jurisdiction:

England and Wales

Citing:

AppliedAlbion Hotel (Freshwater) Ltd v M Maia E Silva, L A Maia E Silva EAT 15-Nov-2001
EAT Unfair Dismissal – Reason for Dismissal
A hotel had failed to pay a bonus to certain staff. This had been found to be an unlawful deduction from wages, and therefore an infringement of a protected right, . .
CitedLindsay v Ironsides Ray and Vials EAT 27-Jan-1994
The industrial tribunal had refused the applicant an extension of time.
Held: The Tribunal mistook the law in holding that it could grant a review of its decision because the employee’s case had not been properly argued at the preliminary . .
CitedGeneral Council of British Shipping v Deria and Others 1985
Where an Industrial Tribunal’s decision could not be reviewed because under the rules, the new evidence had been available, a review based on the new evidence should only be granted where there existed some mitigation causing the failure to bring . .
See AlsoStanley Cole (Wainfleet) Ltd v Sheridan EAT 13-Nov-2001
. .
Appeal fromStanley (Wainfleet ) Ltd v J F Sheridan EAT 18-Jul-2002
EAT Procedural Issues – Employment Tribunal . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment, Natural Justice

Updated: 07 June 2022; Ref: scu.185306

London Borough of Southwark v Jiminez: CA 8 Apr 2003

The appellant authority complained that the tribunal had expressed its view strongly before hearing the evidence and had so demonstrated that its mind was closed.
Held: There was no inevitability that a strongly expressed conditional view amounted to a pre-judgement or a closed mind. Nevertheless a tribunal expressing a view would be well advised to make it quite clear that the view was preliminary only. The more trenchant the view expressed the greater the need for clarity.

Judges:

Peter Gibson, Clarke LJJ, Richards J

Citations:

[2003] EWCA Civ 502, Gazette 12-Jun-2003, [2003] IRLR 477, [2003] ICR 1176

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

LeaveLondon Borough of Southwark v Jiminez CA 31-Jul-2002
Renewed application for leave to appeal – granted on limited grounds . .

Cited by:

CitedWagner (Advocates’ Conduct – Fair Hearing) UTIAC 6-Nov-2015
UTIAC (i) Legitimate advocacy does not extend to aggressive questioning of, or confrontation with, a party or witness. The Tribunal should intervene where this occurs.
(ii) Similarly, mere comments by an . .
Lists of cited by and citing cases may be incomplete.

Employment, Natural Justice

Updated: 07 June 2022; Ref: scu.181174

Taylor v Williamsons (a Firm): CA 17 Jul 2002

The judge concluded hearing evidence, and requested counsel to make their submissions before a certain date. Before that date, and forgetful of his request, he issued his judgement. On realizing his mistake, he withdrew his judgment. The claimant appealed his refusal to recuse himself and order a re-trial.
Held: This was an unfortunate case, but there was no element of bias, and the judge having corrected his mistake could not be thought to be biased. A fair minded and informed observer would not have seen bias.

Judges:

Lord Justice Ward, Lord Justice Tuckey and Lord Justice Clarke

Citations:

Times 09-Aug-2002, Gazette 19-Sep-2002, [2002] EWCA Civ 1380

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedIn re Medicaments and Related Classes of Goods (No 4) CA 26-Jul-2001
The parties had expended very considerable sums preparing for a hearing. The hearing became abortive when it was questioned whether a member of the court had given the appearance of bias. The parties sought payment of their wasted costs from the . .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 06 June 2022; Ref: scu.174708

Sengupta v Holmes and Others, Lord Chancellor intervening: CA 31 Jul 2002

The appellant had applied for leave to appeal to a single judge, who had refused the application. He appealed and was granted leave by two judges. He then objected when the single judge who had refused leave was included in the panel of judges to hear the substantive appeal.
Held: There was no reason to ask the judge to be recused. The test for bias had been set down in the In re Medicaments case, and confirmed in Magill. The judge had heard representations, and made a decision which he knew would be re-argued in full at a full appeal hearing, and that a different decision might then be reached. There was no reasonable basis for thinking he would not approach a full hearing with an open mind.

Judges:

Lord Justice Laws, Lord Justice Jonathan Parker and Lord Justice Keene

Citations:

Times 19-Aug-2002, Gazette 10-Oct-2002, [2002] EWCA Civ 1104

Links:

Bailii

Statutes:

Civil Procedure Rules 52.3, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

CitedIn re Medicaments and Related Classes of Goods (No 4) CA 26-Jul-2001
The parties had expended very considerable sums preparing for a hearing. The hearing became abortive when it was questioned whether a member of the court had given the appearance of bias. The parties sought payment of their wasted costs from the . .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .

Cited by:

CitedCairnstores Ltd Generics (UK) Ltd and Another v Aktiebolaget Hassle CA 22-Oct-2002
Two patents had been invaildated for obviousness. They related to coatings on medicinal pills. The patent holder said the judge’s interruptions indicated bias.
Held: The sumissions were unjustified. The interventions were by no means . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
CitedGrace, Regina (on The Application of) v Secretary of State for The Home Department CA 9-Jun-2014
What is ‘totally without merit’?
The claimant had sought judicial review. Her case had been certified as being ‘totally without merit’, thus denying to her any opportunity to renew her application for leave at an oral hearing, leaving only recourse to a judge of the Court of Appeal . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Natural Justice, Human Rights

Updated: 06 June 2022; Ref: scu.174714

Lawal v Northern Spirit Ltd: EAT 6 Oct 1999

The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
Held: There was no real possibility of bias from this scenario. The tribunal had to be independent and impartial, but mere generalised allegations of pre-disposition to favour one party were insufficient to create any legitimate doubt as to impartiality. The assertion was that there was a risk that a lay member might be subconsciously influenced by the previous professional relationship. For something as insidious and diverse as bias, it was not reasonable to demand an authority on all fours before finding a breach of article 6, but the lay members were carefully chosen. The requirements of article 6 differed only slightly from those long required by common law.
EAT Procedural Issues – Employment Appeal Tribunal

Judges:

The Honourable Mr Justice Lindsay (President)

Citations:

EAT/1170/98, EAT/1171/98, [1999] UKEAT 1170 – 98 – 0610

Links:

Bailii, EATn

Statutes:

European Convention on Human Rights 1953 (1953 Cmd 8969), Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 7(9) 11

Citing:

Application for leaveLawal v Northern Spirit Ltd EAT 15-Feb-1999
The appellant wished to pursue an appeal against the striking out of his claim, and objected that contrary to the Rules, a member of the board who had heard the pre-hearing review had also sat on the full hearing.
Held: The appeal should be . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2001
. .
CitedDivine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .

Cited by:

Appeal fromAA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2001
. .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal. . .
See AlsoLawal v Northern Spirit Ltd CA 15-Jan-2002
Application for leave to appeal . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
. .
See AlsoLawal v Northern Spirit Ltd CA 30-Oct-2002
. .
See AlsoLawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
See AlsoLawal v Northern Spirit Ltd CA 19-Feb-2004
. .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights, Natural Justice

Updated: 06 June 2022; Ref: scu.171704

Diane Modahl v British Athletic Federation: CA 12 Oct 2001

The claimant had been banned from competing as an athlete after failing a drugs test which she said was faulty. Her appeal was upheld, but she claimed damages for breach of contract in failing to provide an unbiased hearing. She appealed dismissal of her action.
Held: Though there was no written contract between her and the defendant, they had accepted an obligation to appoint a panel in accordance with their rules. They were not however liable for any breach of the rules of natural justice by individual panel members because they had provided the appeal.

Judges:

Lord Justice Mance Lord Justice Latham And Lord Justice Jonathan Parker

Citations:

Gazette 08-Nov-2001, [2001] EWCA Civ 1447, [2002] 1 WLR 1192

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedFlaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
CitedWatson v University of Strathclyde EAT 1-Feb-2011
EAT UNFAIR DISMISSAL – Constructive dismissal
Apparent bias. Whether Employment Tribunal had erred in failing to find that there was apparent bias where a member of the panel (the University Secretary) . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Contract

Updated: 04 June 2022; Ref: scu.166646

Starrs and Chalmers and Bill of Advocattion for Procurator Fiscal, Linlithgow v Procurator Fiscal, Linlithgow and Hugh Latta Starrs and James Wilson Chalmers; Starrs v Ruxton, Ruxton v Starrs: ScHC 11 Nov 1999

The system in Scotland whereby lesser judges were appointed by the executive, for a year at a time, and could be discharged without explanation or challenge, meant that they could be seen not to be independent, and the system was a breach of the right to a fair trial by an independent judiciary. There was no open protocol for making such decisions. Unconscious fears of influence in a judge’s mind could be enough.
Lord Prosser referred to the temporary nature of the appointment of Sherriffs: ‘But I am inclined to see independence – the need for a judge not to be dependent on others – as an additional substantive requirement, rather than simply a means of achieving impartiality or a perception of impartiality. Independence will guarantee not only that the judge is disinterested in relation to the parties and the cause, but also that in fulfilling his judicial function, generally as well as individual cases, he is and can be seen to be free of links with others (whether in the executive, or indeed the judiciary, or in outside life) which might, or might be thought to, affect his assessment of the matters entrusted to him.’

Judges:

Lord Justice Clerk and Lord Prosser

Citations:

Times 17-Nov-1999, 2000 JC 208, [1999] ScotHC 242, [2000] HRLR 191

Links:

Bailii, ScotC

Statutes:

European Convention on Human Rights Art 6

Cited by:

CitedMillar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
CitedSingh v The Secretary of State for the Home Department for Judicial Review OHCS 24-Dec-2003
The applicant complained that the adjudicator who had heard his asylum appeal in 1997 had not been sufficiently independent.
Held: The tribunal lacked what had come to be called ‘structural independence’ The common law test for impartiality . .
CitedHolder v The Law Society Admn 26-Jul-2005
The applicant challenged the independence of the respondent’s disciplinary tribunal.
Held: The claim failed: ‘the nature of the Tribunal is entirely adequately independent and impartial for the purposes for which it is constituted. The . .
CitedBarclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Administrative, Natural Justice, Scotland

Updated: 04 June 2022; Ref: scu.164537

Panton and Panton v The Minister of Finance and the Attorney General: PC 12 Jul 2001

(Jamaica) The appellants were shareholders in failed financial institutions. Arrangements were made which compensated creditors and depositors, through the contribution of funds by the government, but shareholders were not compensated. The Attorney General in the case had served in the government which made the arrangements, and they said he should have disqualified himself.
Held: There was no evidence of his being involved in the promotion of the bill being challenged, and that claim failed. They argued also that the bill had taken their property in contravention of the constitution. The arrangements made were temporary, and were regulatory rather than a confiscatory nature, and the appellants were not entitled to compensation.

Citations:

[2001] UKPC 33

Links:

Bailii, PC, PC

Cited by:

CitedDavidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Natural Justice, Commonwealth

Updated: 01 June 2022; Ref: scu.159473

Nwabueze v General Medical Council: PC 6 Apr 2000

Deliberations of the professional conduct committee hearing a case of professional conduct were in the presence of an assessor who gave advice to the committee. After returning from deliberation the assessor described the advice given, and the chairman announced his decision.
Held: This infringed the right under article 8 of the doctor to a fair trial since he was not allowed to comment on the advice given. Allegations which were irrelevant to the doctor’s practice should be deleted from the charge list presented. As to the lay member’s presence on the Professional Conduct Committee of the General Medical Council, Lord Hope of Craighead said: ‘From this summary it can be seen that Mrs. Walker was and is eminently well qualified to sit on the Professional Conduct Committee as one of its lay members. She brought to that membership an extensive knowledge of the health service in Wales, as a result of having worked there for many years as ~ nurse and midwife and her period of service as director of the South East Wales Institute. It is in the public interest that those who serve as lay members on disciplinary bodies of this kind should be well-informed and have experience of working in the area within which cases are likely to arise on which they may be called upon to adjudicate. It could not possibly be suggested that there was anything in Mrs. Walker’s general background that would be likely to give rise to the danger or possibility of bias on her part when she was considering a case from Wales.’

Judges:

Lord Hope of Craighead

Citations:

Times 11-Apr-2000, [2000] UKPC 16, (Appeal No 21 of 1999), [2000] 1 WLR 1760

Links:

Bailii, PC, PC

Statutes:

Medical Act 1983, European Convention on Human Rights 8

Citing:

CitedFox v General Medical Council PC 1960
The appeal by a doctor from the disciplinary committee of the GMC to the board of the Privy Council lies of right by the statute and the terms of statute do not limit or qualify the appeal in any way, so that the appellant is entitled to claim that . .

Cited by:

CitedFlaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
CitedThe British Medical Association, Regina (on the Application of) v The General Medical Council and Another Admn 4-May-2016
The BMA sought to challenge the validity of the rules governing the procedure of Fitness to Practice panels. In particular the BMA challenged the new absence of a requirement that the panel’s legal advice and assistance be available to the parties. . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights, Natural Justice

Updated: 01 June 2022; Ref: scu.159404

Dr Marta Stefan v The General Medical Council: PC 8 Mar 1999

The General Medical Council is under a duty to give reasons for its decisions however short. Though no express duty is in the regulations under which it operates, the availability of an appeal on a point of law, implied the need to give reasons.

Citations:

Times 11-Mar-1999, (Appeal No 16 of 1998), [1999] UKPC 10

Links:

Bailii, PC, PC, PC

Statutes:

Medical Act 1983

Natural Justice, Health Professions

Updated: 01 June 2022; Ref: scu.159342

Regina v Benjafield, Leal, Rezvi and Milford: CACD 21 Dec 2000

Lord Woolf MR said that where the original proceedings are brought by a public authority, an appeal is part of those proceedings to which section 22(4) applies: ‘In our judgment, where the original proceedings are brought by, or at the instigation of, a public authority, as is the case with a prosecution, an appeal by the defendant is part of the proceedings to which section 22(4) applies. There cannot be a different position on an appeal from that of the trial so far as the issue of retrospectivity of the Human Rights Act 1998 is concerned. Any other construction would mean that in criminal cases the Court of Appeal could not give the required protection to the individual (who would clearly be a victim of any unlawful act) so that there would be a need for an otherwise unnecessary but time-consuming and expensive trip to Strasbourg. In addition, otherwise section 7(1)(b) will apply where the appeal is by a public authority, but not when the appeal is made by the defendant.’

Judges:

Lord Woolf MR, Judge LJ, Collins J

Citations:

[2000] EWCA Crim 86

Links:

Bailii

Statutes:

European Convention on Human Rights, Criminal Justice Act 1988, Drug Trafficking Act 1994

Jurisdiction:

England and Wales

Cited by:

Appeal fromRegina v Benjafield, Regina v Leal, Regina v Rezvi, Regina v Milford HL 24-Jan-2002
Statutory provisions which reversed the burden of proof in cases involving drug smuggling and other repeat offenders, allowing confiscation orders to be made were not necessarily in contravention of the article 6 right. However the question of . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Crime, Natural Justice, Human Rights

Updated: 31 May 2022; Ref: scu.158736

Mahomed and Another v Morris and Others: CA 17 Feb 2000

Citations:

[2000] EWCA Civ 46

Links:

Bailii

Statutes:

Insolvency Act 1986 168(5)

Jurisdiction:

England and Wales

Citing:

CitedIn Re Edennote Ltd; Tottenham Hotspur plc v Ryman CA 21-May-1996
The company was in liquidation. Terence Venables, who had owned the shares, had taken an assignment of a cause of action against the football club. The court had set aside that assignment, and removed the liquidator. Venables now appealed saying . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 31 May 2022; Ref: scu.147079

Watson v General Medical Council: Admn 26 Aug 2005

The claimant said that the procedure of the fitness to practice panel was unfair in that representations had been accepted by the panel from an expert witness without him having an opportunity to challenge or comment on that evidence.
Held: Any advice accepted by the tribunal must allow for submissions from the parties. The appeal was by way of a re-hearing. Since the assessor gave evidence as to the facts from which no appeal lay, it was particularly important that his advice should be subject to appropriate submissions.

Judges:

Stanley Burnton J

Citations:

Times 07-Oct-2005, [2005] EWHC 1896 (Admin)

Links:

Bailii

Statutes:

Medical Act 1983 840

Jurisdiction:

England and Wales

Citing:

CitedClark (Procurator Fiscal, Kirkcaldy) v Kelly PC 11-Feb-2003
PC (The High Court of Justiciary) The minuter challenged the role of the legal adviser to the district courts in Scotland, and as to his independence.
Held: The legal adviser was not subject to the same . .
CitedRegina (Arley Erlester Clark) v United Kingdom Central Council for Nursing, Midwifery and Health Visiting 2004
The court described the function of the appellate court when deciding whether the decision of a disciplinary committee was challenged: ‘In broad terms, the approach of the court on an appeal is as follows. Although its function in respect of a . .
CitedThrelfall v General Optical Council Admn 26-Nov-2004
The optician, a registered opthalmic optician appealed a finding of serious professional misconduct in having failed to diagnose a patient’s condition when referring her to the hospital.
Held: The appeal succeeded. An optician carrying out an . .
CitedMoody v General Osteopathic Council Admn 5-Apr-2004
. .
CitedRegina on the Application of Mahfouz v The Professional Conduct Committee of the General Medical Council CA 5-Mar-2004
The doctor requested members of the disciplinary tribunal to recuse themselves when, after the first day of the hearing they saw prejudicial material in newspapers which material was not in evidence. They had further declined to allow an adjournment . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Natural Justice

Updated: 30 May 2022; Ref: scu.229752

London Borough of Ealing and others v Jan: CA 7 Feb 2002

Appeal from findings of breaches of injunctions.

Citations:

[2002] EWCA Civ 329

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedAMEC Capital Projects Ltd v Whitefriars City Estates Ltd CA 28-Oct-2004
Alleged bias and procedural unfairness by an adjudicator appointed to determine a dispute in relation to a construction contract.
Held: The principles of the common law rules of natural justice and procedural fairness were two-fold. A . .
Lists of cited by and citing cases may be incomplete.

Health, Natural Justice

Updated: 30 May 2022; Ref: scu.216809

Weeks v Magill and Porter v Magill: CA 5 Nov 1998

Citations:

[1998] EWCA Civ 1702

Jurisdiction:

England and Wales

Citing:

See AlsoWeeks v Magill and Dame Porter v Magill CA 30-Apr-1999
Where local councillors acted with a proper local government purpose, and in accordance with officers’ advice, ulterior motives of electoral advantage did not make the decisions improper. . .

Cited by:

See AlsoDame Porter; Weeks; Hartley; England and Phillips v Magill Admn 12-Jan-1998
. .
See AlsoWeeks v Magill and Dame Porter v Magill CA 30-Apr-1999
Where local councillors acted with a proper local government purpose, and in accordance with officers’ advice, ulterior motives of electoral advantage did not make the decisions improper. . .
Lists of cited by and citing cases may be incomplete.

Local Government, Natural Justice

Updated: 30 May 2022; Ref: scu.145181

Secretary of State for Trade and Industry v Baker, Bax, Broadhurst and others: CA 9 Jun 1998

Application for leave to appeal agaist orders made against the directors of Barings plc following its collapse. The appellants alleged abuse of process and unfairness and double jeopardy.
Held: ‘It is true that the underlying facts of the charges brought by the SFA and the Secretary of State are the same. However, as Lord Justice Chadwick has set out very fully in his judgment, the status, the issues and the consequences of the two sets of proceedings have very important differing features. ‘ The application was dismissed.

Judges:

Swinton Thomas, Waller, Chadwick LJJ

Citations:

[1998] EWCA Civ 943, [1999] 1 WLR 1985, [1999] 1 BCLC 226, [1999] BCC 639, [1999] 1 All ER 311

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Company, Natural Justice

Updated: 30 May 2022; Ref: scu.144422

Lloyd v McMahon: HL 12 Mar 1987

The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
Held: An aggrieved objector to local government spending should pursue his rights under the Act and not by way of seeking judicial review.
the requirements of fairness depend on the character of the decision-making body, the kind of decision it is to make and the legal framework within which it operates.
Lord Keith said: ‘It is, however, my opinion that the particular appeal mechanism provided for by section 20(3) of the Act of 1982, considered in its context, is apt to enable the court, notwithstanding that it finds some procedural defect in the conduct of an audit which has resulted in a certificate based on wilful misconduct, to inquire into the merits of the case and arrive at its own decision thereon. Section 20(3)(b) empowers the court to ‘confirm the decision or quash it and given any certificate which the auditor could have given.’ The relevant rules of court enable a rehearing of the broadest possible scope to take place . . In the circumstances, it would be quite unreasonable and not in accordance with the intendment of the enactment to hold that the court, where an issue is raised as to the fairness of the procedure adopted by the auditor, is confined to a judicial review species of jurisdiction so as to have power only to quash or affirm the auditor’s certificate without entering upon its own examination of the merits of the case. No doubt there may be cases where the procedural defect is so gross, and the prejudice suffered by the appellant so extreme, that it would be appropriate to quash the auditor’s decision on that ground. But in my opinion the court has a discretion, where it considers that justice can properly be done by its own investigation of the merits, to follow that course.’
Lord Bridge said: ‘My Lords, the so called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure attainment of fairness.’ and ‘In every case it must be for the court, as a matter of discretion, to decide how in all the circumstances its jurisdiction under section 20(3) can best be exercised to meet the justice of the case. But I am clearly of opinion that when the court has, as here, in fact conducted a full hearing on the merits and reached a conclusion that the issue of a certificate was justified, it would be an erroneous exercise of discretion nevertheless to quash the certificate on the ground that, before the matter reached the court, there had been some defect in the procedure followed.’
Lord Templeman said: ‘The task of the court was to ‘give any certificate which the auditor could have given’ (section 20(3) of the Act of 1982). The court was not concerned with any defects in the procedure adopted by the auditor because those defects (if any) did not hamper the prosecution or conduct of the appeal. Different considerations apply if a statute only allows an appeal to a court on a question of law, or entitles or obliges the court of law to rely on the facts found by the tribunal. And the defects in the inquiry conducted by the tribunal may be so prejudicial to the aggrieved person that the court in its discretion may decide to quash the decision and not to proceed with an appeal on the merits in the absence of the views of the tribunal after a proper inquiry. In the present case the Divisional Court was entitled to consider the appeal on its merits and on the basis of the evidence presented to the court.’

Judges:

Lord Bridge, Lord Keith, Lord Templeman

Citations:

[1987] AC 625, [1987] UKHL 5, [1987] 1 All ER 1118, [1987] 2 WLR 821

Links:

Bailii

Statutes:

Local Government Finance Act 1982 17, General Rate Act 1967 20(1)

Jurisdiction:

England and Wales

Citing:

Appeal fromLloyd v McMahon CA 1986
Councillors had been surcharged by the district auditor. The Act provided for an appeal to the High Court by anyone ‘aggrieved’ by the decision of an auditor, and further provided that on the hearing of the appeal ‘the court may confirm, vary or . .
CitedIn Re Smith and Fawcett Ltd CA 1942
Directors to act Without Collateral Purpose
The primary duty of a director imposed by the general law is that he should act in what he considers to be the best interests of the company, and not for any collateral purpose. That duty is a subjective one that depends on the directors exercising . .
CitedJeffs and Others v The New Zealand Dairy Production and Marketing Board and Others PC 13-Oct-1966
(New Zealand) . .
CitedLeary v National Union of Vehicle Builders 1971
The court faced questions on a trades union’s decision as to the membership of the applicant.
Held: As a general rule, ‘a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.’ . .
CitedCalvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
CitedCouncil of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .

Cited by:

CitedRegina (DR) (AM) v St George’s Catholic School and Others, Regina (A) v Kingsmead School Governors and Another CA 13-Dec-2002
The applicants appealed the refusal of judicial review of the refusals of their appeals against exclusion from school.
Held: The Act provided a full appeal procedure from the initial decision of the school’s head teacher, first to the . .
CitedCentre Reinsurance International Co and Another v Curzon Insurance Ltd ChD 12-Feb-2004
It was a necessary part of the system of statutory transfers of insurance obligations under the Act, that the rights should be transferred before exhaustion of any policy excess, and notwithstanding the insolvency. The rights (inchoate at this . .
CitedRegina v District Auditor, Gateshead ex parte Judge P CA 8-Nov-1996
The objector sought leave to appeal. He had objected to spending on a war memorial. The district auditor when declining to intervene had given his reasons. The claimant objected that he should have waited before giving those reasons.
Held: . .
CitedAttorney General’s Reference (No 3 of 2003) CACD 7-Apr-2004
Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The . .
CitedSecretary of State for the Home Department v SP CA 21-Dec-2004
The applcant, a girl aged 17 was in a young offender institution. She complained that she had been removed to segregation without first giving her chance to be heard. The respondent argued that there were sufficient post decision safeguards to . .
CitedTangney v The Governor of HMP Elmley and Another CA 29-Jul-2005
The claimant was a serving a life sentence. During prison disciplinary proceedings he was refused legal and other assistance, and an outside tribunal on the basis that since any finding would not lead to any loss of remission or extra time, his . .
CitedRegina v Civil Service Appeal Board, Ex parte Cunningham CA 1991
The court considered the effect of a disciplinary board failing to give reasons. The absence of any right to appeal may be a factor in deciding that reasons should be given. If it is ‘important that there should be an effective means of detecting . .
CitedRegina v Ministry of Defence ex parte Colin James Murray QBD 15-Dec-1997
The defendant sought judicial review of his court-martial and of the confirming officers. He said the court should have heard that he committed the offence whist intixicated after taking an anti-malarial drug. The court dd not explain why it had . .
CitedBetterment Properties (Weymouth) Ltd v Dorset County Council ChD 2-Mar-2007
The company sought an order removing some 46 acres of land from designation as a village green. The claimant sought the amendment of the register. The parties disputed what evidence beyond that available to the committee making the decision should . .
CitedRegina v Secretary of State for Wales Ex Parte Emery CA 9-Jul-1997
The applicant had sought to have included in the definitive map, a local footpath, and now challenged refusal to include it.
Held: A public right of way may be created by dedication or it may be deemed after actual use by the public over . .
CitedLawrence v Financial Services Commission PC 14-Dec-2009
lawrence_fscPC2009
(Jamaica) The appellant challenged a fixed penalty notice issued in respect of a financial services allegation, saying that it had been made without him having been allowed opportunity to be heard by an impartial tribunal.
Held: Actions under . .
Lists of cited by and citing cases may be incomplete.

Local Government, Administrative, Natural Justice

Updated: 28 May 2022; Ref: scu.183208

Regina v Criminal Injuries Compensation Authority ex parte Leatherland and Criminal Injuries Compensation Board ex parte Bramall and Criminal Injuries Compensation Panel ex parte Kay: Admn 4 Apr 1998

Citations:

[1998] EWHC Admin 406

Links:

Bailii

Citing:

CitedKanda v Government of the Federation of Malaya PC 2-Apr-1962
A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Natural Justice

Updated: 27 May 2022; Ref: scu.138527

Regina (Harpers Leisure International Ltd) v Guildford Borough Council: QBD 13 Jul 2009

The claimant wanted to argue that proceedings before the respondent’s licensing sub-committee were an abuse of process. The committee had said it had no jurisdiction to admit such a clam.
Held: Any such power in an administrative tribunal must be given explicitly by whatever statute created it. A power could not be implied by law and were not inherent. Admission of such a power would allow proceedings to be waylaid by what might be a collateral attack.

Judges:

Charles J

Citations:

Times 14-Aug-2009

Statutes:

Licensing Act 2003 51

Jurisdiction:

England and Wales

Licensing, Natural Justice

Updated: 26 May 2022; Ref: scu.372845

Westleigh Properties Ltd v Christie and Others: UTLC 14 Jul 2009

UTLC LANDLORD AND TENANT – LVT procedure – refusal to grant adjournment – not in breach of natural justice
LEASEHOLD ENFRANCHISEMENT – terms of transfer – application for permission – section 24 Leasehold Reform Act 1993 – service charge outstanding – whether LVT entitled to consider reasonableness of charge – permission refused

Citations:

[2009] UKUT 129 (LC)

Links:

Bailii

Statutes:

Leasehold Reform Act 1993 24

Jurisdiction:

England and Wales

Landlord and Tenant, Natural Justice

Updated: 26 May 2022; Ref: scu.373421

The Congregation of The Poor Sisters of Nazareth and The Daughters of Charity of Saint Vincent De Paul: SCS 1 Jul 2015

For Judicial Review of a decision of the Scottish Ministers dated 28 May 2015 to appoint Ms Susan O’Brien QC as Chair to the Historical Child Abuse Inquiry in terms of section 4(1) of the Inquiries Act 2005

Citations:

[2015] ScotCS CSOH – 87, 2015 GWD 22-385, 2015 SLT 445

Links:

Bailii

Jurisdiction:

Scotland

Administrative, Natural Justice

Updated: 23 May 2022; Ref: scu.550105

Hoffmann-La Roche v Commission: ECJ 13 Feb 1979

ECJ Observance of the right to be heard is required in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed as a fundamental principle of community law. It must be respected even if the proceedings in question are administrative proceedings.
In the matter of competition and in the context of proceedings for a finding of infringements of articles 85 or 86 of the treaty, observance of the right to be heard requires that the undertakings concerned must have been afforded the opportunity to make known their views on the truth and relevance of the facts and circumstances alleged and on the documents used by the commission in support of its claim that there has been an infringement.
The obligation on the commission under article 20 (2) of regulation no 17 to observe professional secrecy must be reconciled with the right to be heard. By providing undertakings from whom information has been obtained with a guarantee that their interests, which are closely connected with observance of professional secrecy, are not jeopardized, that provision enables the commission to collect on the widest possible scale the requisite data for the fulfilment of its task of supervision without the undertakings being able to prevent it from doing so ; the commission may not however use, to the detriment of an undertaking in proceedings for a finding of an infringement of the rules on competition, facts or documents which it cannot in its view disclose if such a refusal of disclosure adversely affects that undertaking’s opportunity to make known effectively its views on the truth or implications of those facts or documents or again on the conclusions drawn by the commission from them.
Europa
If a product could be used for different purposes and if these different uses are in accordance with economic needs, which are themselves also different, there are good grounds for accepting that this product may, according to the circumstances, belong to separate markets which may present specific features which differ from the standpoint both of the structure and of the conditions of competition. However this finding does not justify the conclusion that such a product together with all the other products which can replace it as far as concerns the various uses to which it may be put and with which it may compete, forms one single market. The concept of the relevant market in fact implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market in so far as a specific use of such products is concerned.
The dominant position referred to in article 86 of the treaty relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers. Such a position does not preclude some competition, which it does where there is a monopoly or a quasimonopoly, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment.
Very large market shares are highly significant evidence of the existence of a dominant position. Other relevant factors are the relationship between the market shares of the undertaking concerned and of its competitors, especially those of the next largest, the technological lead of the undertaking over its competitors, the existence of a highly developed sales network and the absence of potential competition.

Europa The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.
An undertaking which is in a dominant position on a market and ties purchasers – even if it does so at their request – by an obligation or promise on their part to obtain all or most of their requirements exclusively from the said undertaking abuses its dominant position within the meaning of article 86 of the treaty, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the said undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say discounts conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position.
Obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to deprive the purchaser of or restrict his possible choices of sources of supply and to deny other producers access to the market.

Europa The abuse of a dominant position and the restriction of competition as attributes of the contracts in question are not avoided by the so-called” english” clause contained in them whereby the purchasers undertake to notify the undertaking in a dominant position of any more favourable offer made to them by competitors and are free, if that undertaking does not adjust its prices to the said offer, to obtain their supplies from competitors. In these circumstances a clause of this kind is such as to enable the undertaking in a dominant position to realize an abuse of that dominant position.
The effect of fidelity rebates is to apply dissimilar conditions to equivalent transactions with other trading parties in that two purchasers pay a different price for the same quantity of the same product depending on whether they obtain their supplies exclusively from the undertaking in a dominant position or have several sources of supply.

Citations:

C-85/76, [1979] EUECJ C-85/76, [1979] ECR 461

Links:

Bailii

Cited by:

CitedAttheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
CitedChester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Lists of cited by and citing cases may be incomplete.

European, Commercial, Natural Justice

Updated: 21 May 2022; Ref: scu.132487

Stevens v School of Oriental and African Studies and others: ChD 2 Feb 2001

It was not unfair or a denial of the applicant’s human rights, to strike out a second action which differed only marginally in the parties involved, from an earlier action already struck out by the court for delay, and where the claimant had not yet satisfied a costs order made against him arising from that earlier action.

Citations:

Times 02-Feb-2001

Jurisdiction:

England and Wales

Natural Justice, Litigation Practice, Human Rights

Updated: 20 May 2022; Ref: scu.89548