CRJ 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 contracts which the defendant then said were beyond his capacity. The defendant ceased trading at the site and the claimant then sought to enforce the contracts. The defendant denied liability under the contracts. The claimant now sought to enforce the order in its favour at the ensuing adjudication.
Held: The adjudication should be enforced. The defendant had entered into contracts through the agent, and had conceded that he had certain authorities. It had no prosepect of succesfully denying that agency now. The adjudicator’s reference to the contents of a statement of the challenged agent but mistakenly not served was insufficient to establish a breach of natural justice.

Akenhead J
[2011] EWHC 972 (TCC)
Bailii
England and Wales
Citing:
Cited – Carillion 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 – Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd CA 1964
The defendant company allowed one of its directors to act as the Managing Director and to give instructions to the Plaintiff to do work on its behalf.
Held: The fact that he had never been formally appointed as Managing Director was of no . .
Cited – 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 . .
Cited – Pharmed Medicare Private Ltd v Univar Ltd CA 5-Nov-2002
An issue was raised that contracts entered into by the defendant by an ‘Industry Manager’ and an ‘Inside Sales Manager’ were not so entered as the two individuals had no authority and because the contracts were for substantial quantities of the . .

Lists of cited by and citing cases may be incomplete.

Agency, Natural Justice

Updated: 12 November 2021; Ref: scu.432870

Save 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.
Held: Review was granted. The respondent had failed to disclose necessary elements of the decision making progress so that the claimants could make representations. It could not be said that the decision would inevitable have been the same if disclosure had taken place.
The scoring was very close as between the competing entres, and the court did not accept that characterisation by the defendants of the ‘sub-scores as being no more than ‘underlying workings’. They provided the basis for the consensus score which was ultimately used as one of the most valuable and thus significant tools in the assessment of ‘Quality’ of the respective centres.’

Nicola Davies J
[2013] EWHC 439 (Admin), [2013] PTSR D16
Bailii
National Health Service Act 2006 1 3, National Health Service (Functions of Strategic Health Authorities and Primary Care Trust and Administration Arrangements) (England) Regulations 2002 3
England and Wales
Citing:
Cited – Regina v Brent London Borough Council ex parte Gunning 1985
The demands of fair consultation procedures will vary from case to case and will depend on the factors involved. The requirements are: ‘First, that consultation must be at a time when proposals are still at a formative stage. Second, that the . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Devon County Council and Another v Secretary of State for Communities and Local Government Admn 21-Jun-2010
The court was asked to consider the decision to merge two health authorities. Ouseley J discussed what need to be made available to support the consultation: ‘What needs to be published about the proposal is very much a matter for the judgment of . .
Cited – Regina 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’, . .
Cited – Bushell v Secretary of State for the Environment HL 7-Feb-1980
Practical Realities of Planning Decisions
The House considered planning procedures adopted on the construction of two new stretches of motorway, and in particular as to whether the Secretary of State had acted unlawfully in refusing to allow objectors to the scheme to cross-examine the . .
Cited – Eisai 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 – Kioa v West 18-Dec-1985
kioa_westHCA1985
(High Court of Australia) Immigration and Aliens – Deportation – Power of Minister – Principles of natural justice – Whether applicable – Standing as Australian citizen of infant daughter of aliens – Intended deportation order – Whether notice . .
Cited – Lambeth London Borough Council v Ireneschild CA 16-Mar-2007
The tenant held a secure tenancy of a first floor flat of the Council. She was severely disabled and argued that the danger of injury meant that she should be allowed to occupy the empty ground floor flat. She complained at the way the authority had . .
Cited – Eisai Ltd v The National Institute for Health and Clinical Excellence Admn 10-Aug-2007
The company sought to challenge the decision of the respondent not to approve its drug for use for the treatment of patients with Alzheimer’s disease.
Held: In requiring all patients to have a certain MMSE score in order to qualify for funding . .
Cited – 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 . .
Cited – 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 . .
Cited – Secretary of State for Education and Science v Tameside Metropolitan Borough Council HL 21-Oct-1976
An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.’ A mere factual mistake has become a ground of judicial . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Natural Justice

Leading Case

Updated: 11 November 2021; Ref: scu.471509

Gaiman v The National Association for Mental Health: ChD 1970

The court considered the articles of an association without share capital but limited by guarantee. One article provided that a member should cease to be a member of the association if he were requested by resolution of the council to resign. It was alleged that the council had acted under that article in breach of its fiduciary duty to act for the benefit of the association as a whole and that the expulsion of the plaintiffs was therefore invalid.
Held: Megarry J said: ‘If the council had acted in breach of its fiduciary duty towards members of the association, this could hardly mean that the council’s acts were invalid. A breach of trust is not a nullity, but a ground for complaint.’ He declined to intervene and doubted whether the principles of natural justice could apply to a company formed under the Companies Acts. Freedom of association embraces the freedom to exclude from association those whose membership it honestly believes to be damaging to the interests of the Society: ‘one of the more difficult problems of the doctrine of natural justice is to determine what cases fall within its ambit;’

Megarry J VC
[1970] 3 WLR 42, [1971] Ch 317, [1970] 2 All ER 362
England and Wales
Cited by:
Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA 12-Jul-2005
The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .
Cited – Shearson Lehman Hutton Inc and Another v Maclaine Watson and Co Ltd and Others 1989
The court considered the requirements of natural justice in the light of the decision in Gaiman: ‘Nor do I consider my conclusions to be inconsistent with the decision of Megarry J in [Gaiman] because Megarry J held that the principles of natural . .

Lists of cited by and citing cases may be incomplete.

Company, Natural Justice

Leading Case

Updated: 11 November 2021; Ref: scu.228471

Regina v Criminal Injuries Compensation Board Ex Parte A: HL 11 Mar 1999

A police doctor’s statement in a contemporary medical report that her findings were consistent with the claimant’s allegation had not been included in the evidence before the CICB when it rejected her claim for compensation.
Held: The decision was quashed. What happened was held to be a breach of the rules of natural justice and constituted unfairness. Where a party had successfully applied inter partes for judicial review out of time, the court should not bring that question in again when making the final order. A party wishing to oppose the time extension should rather appeal against the leave given.
The court has a jurisdiction to quash for a misunderstanding or ignorance of an established and relevant fact.
Lord Slynn of Hadley set out the principles to be applied in cases relating to delay as:
‘(a) On an ex parte application leave to apply for judicial review out of time can be refused, deferred to the substantive hearing or given.
(b) Leave may be given if the court considers that good reason for extending the period has been shown. The good reason on an ex parte application is generally to be seen from the standpoint of the applicant.
(c) If leave is given then an application to set it aside may be made though this is not to be encouraged.
(d) If leave is given, then unless set aside, it does not fall to be reopened at the substantive hearing on the basis that there is no ground for extending time under Ord.53 r.4(1). At the substantive hearing there is no ‘application for leave to apply for judicial review’, leave having already been given.
(e) Nor is there a power to refuse ‘to grant . . leave’ at the substantive hearing on the basis of hardship or prejudice or detriment to good administration. The court has already granted leave; it is too late to ‘refuse’ unless the court sets aside the initial grant without a separate application having been made for that to be done. What the court can do under section 31(6) is to refuse to grant relief. (This was stated by his Lordship as his ‘provisional view’ on this matter as the point had not been argued).
(f) If the application is adjourned to the substantive hearing, the questions as to good reason for an extension of time and hardship, prejudice, detriment, justifying a refusal of leave may fall for determination’.

Lord Slynn of Hadley Lord Mackay of Clashfern Lord Nolan Lord Clyde Lord Hobhouse of Woodborough
Times 26-Mar-1999, Gazette 28-Apr-1999, [1999] UKHL 21, [1999] 2 AC 330, [1999] 2 WLR 974, [1999] QB 659
House of Lords, House of Lords, Bailii
Supreme Court Act 1981 31
England and Wales
Citing:
Overruled – Ex parte Worth 1985
The giving of leave to bring a judicial review case did not equate to an extension of time to make the application. The judge’s task on the ex parte application was to do no more than to decide that there was an arguable case for judicial review and . .
Cited – Regina v Dairy Produce Quota Tribunal for England and Wales, Ex parte Caswell HL 17-May-1990
The House sought to reconcile section 31 of the 1981 Act, with RSC Order 53 r4 as to the time within which judicial review proceedings must be brought.
Held: Whenever there was a failure to act promptly or within three months there was ‘undue . .
Cited – Regina v Greenwich London Borough Council, Ex Parte Patterson QBD 27-May-1993
A council should satisfy itself by making more enquiries about suggestions of domestic violence before transferring a claimant to another authority. The granting of leave to move for a judicial review does not preclude the respondent from objecting . .

Cited by:
Cited – E v Secretary of State for the Home Department etc CA 2-Feb-2004
The court was asked as to the extent of the power of the IAT and Court of Appeal to reconsider a decision which it later appeared was based upon an error of fact, and the extent to which new evidence to demonstrate such an error could be admitted. . .
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Natural Justice

Leading Case

Updated: 11 November 2021; Ref: scu.135140

Nadiany Bamba v European Commission: ECJ 15 Nov 2012

bamba_ecECJ2012

ECJ Appeal – Common foreign and security policy – Specific restrictive measures directed against certain persons and entities in view of the situation in Cote d’Ivoire – Freezing of funds – Article 296 TFEU – Obligation to state the reasons on which a decision is based – Rights of the defence – Right to an effective legal remedy – Right to respect for property

R Silva de Lapuerta P
C-417/11, [2012] EUECJ C-417/11
Bailii

European, Natural Justice

Updated: 11 November 2021; Ref: scu.466003

AM (Fair Hearing): UTIAC 10 Nov 2015

UTIAC (i) Independent judicial research is inappropriate. It is not for the judge to assemble evidence. Rather, it is the duty of the judge to decide each case on the basis of the evidence presented by the parties, duly infused, where appropriate, by the doctrine of judicial notice.
(ii) If a judge is cognisant of something conceivably material which does not form part of either party’s case, this must be brought to the attention of the parties at the earliest possible stage, which duty could in principle extend beyond the hearing date.
(iii) Judges are entitled to form provisional views in advance of a hearing provided that an open mind is conscientiously maintained.
iiv) Footnotes to decisions of the Secretary of State are an integral part of the decision and, hence, may legitimately be considered and accessed by Tribunals.
(v) Fairness may require a Tribunal to canvas an issue which has not been ventilated by the parties or their representatives, in fulfilment of each party’s right to a fair hearing.

McCloskey P J, Canavan UTJ
[2015] UKUT 656 (IAC)
Bailii
England and Wales

Immigration, Natural Justice

Updated: 11 November 2021; Ref: scu.565371

Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services: CA 18 Feb 1999

A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned judgment denies the parties, especially but not solely the losing party, the materials necessary to know why the outcome has been what it has and whether it is appealable. The court allowed the appeal, the judge having failed to say why he had preferred the evidence of one expert witness to another.
Henry LJ set out the general duty of a ‘professional judge’ to give reasons stating: ‘where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other.’

Times 04-Mar-1999, Gazette 31-Mar-1999, [1999] EWCA Civ 811, [2000] 1 All ER 373, [2000] 1 WLR 377, (1999) 11 Admin LR 465, [1999] BLR 107, [2000] CP Rep 18, (1999) 15 Const LJ 313
Bailii
England and Wales
Citing:
Cited – Eckersley v Binnie CA 1988
The court considered the duties of a judge considering conflicting expert evidence: ‘In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he . .
Cited – Regina v Harrow Crown Court Ex Parte Dave QBD 20-Oct-1993
A Crown Court when sitting as an appellate court must give reasons for its decision. The court reviewed earlier decisions, and concluded that where a court is going to reject expert evidence it must give proper reasons: ‘The appellant was entitled . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – Regina v Knightsbridge Crown Court ex parte International Sporting Club (London) Ltd and Another QBD 1981
The applicant’s gaming licence had been cancelled by the Gaming Licensing Committee on the grounds that it was not a fit and proper person to hold a gaming licence. The applicant entered a notice of appeal and before the hearing of the appeal . .
Cited – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) CA 1985
Proof of corruption not needed for bribe
In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the . .
Cited – Rhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .

Cited by:
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Richardson and Orme v North Yorkshire County Council CA 19-Dec-2003
The claimants appealed against an order dismissing their application for a judicial review of the respondent’s grant of planning permission. They contended that a councillor with an interest in the matter had wrongfully not been excluded from the . .
Cited – Golobiewska v Commissioners of Customs and excise CA 6-May-2005
The owner of a motor vehicle which had been seized by Customs applied to have it restored.
Held: the 1994 Act placed the burden on the applicant to establish that she was entitled to the return of her car, but the standard of proof was the . .
Cited – Crossley v Crossley CA 21-Dec-2005
The claimant appealed an order that a house was to be held in equal shares with her son. The house was registered in their joint names, but the transfer contained no declaration of the interests. The house had been originally bought by the mother . .
Cited – Hicks Developments Ltd v Chaplin and others ChD 5-Feb-2007
The defendants had succeeded in an application before the Land Registry adjudicator for a strip of land adjoining their property to be registered in their name after a finding that they had successfully established a claim by adverse possession. The . .
Cited – EE and Brian Smith (1928) Ltd v Hodson and others CA 23-Nov-2007
The defendants appealed grant of an interim injunction to enforce restrictive employment covenants. The second defendant had sold his interest in the claimant company in 2001, but after his consultancy ended, he set up another business, the third . .
Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Cited – Sibley and Co v Reachbyte Ltd and Another ChD 4-Nov-2008
Solicitors appealed against a costs order made refusing them payment of all of Leading and Junior counsel’s fees.
Held: The leading counsel involved had not provided anything like a detailed account of the time he had spent on what was a . .
Cited – Burns v Royal Mail Group Plc (No 2) (Formerly Consignia Plc), Humphrey EAT 14-Jan-2004
The hearing was an adjourned second hearing. The appeal on sex discrimination had been dismissed, and the balance of the claim for constructive unfair dismissal was adjourned. At that adjourned hearing the claimant now sought to re-open the claims . .
Cited – Reynolds v Stone Rowe Brewer (A Firm) QBD 18-Mar-2008
The solicitors appealed against the assessment of their costs. The judge had found that they had estimated their costs and applied a 15% margin of error.
Held: the judge should have given reasons for his judgment to allow the parties to assess . .
Cited – Mars UK Ltd T/A Masterfoods v K Parker EAT 24-Oct-2005
EAT Whether an Employment Tribunal took a permissible approach to determining that a dismissal was unfair, in circumstances in which it did not clearly set out the terms of section 98 of the Employment Rights Act . .
Cited – Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government and Another Admn 5-Dec-2014
The claimant appealed against refusal of permission to erect a six turbine wind farm. The inspector had recommended the plan, but the defendant had decided against it.
Held: The claim failed. The planning inspector’s report is the . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.145726

South Lanarkshire Council v The Scottish Information Commissioner: SC 29 Jul 2013

Commissioner’s Approach not in Breach

In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His underlying purpose was to find out whether the Council’s pay gradings favoured work traditionally done by men. He did not want to know the names of the employees concerned. The Council refused his request on the ground that to comply with it would contravene the Data Protection Act 1998 (DPA). Mr Irvine complained to the Scottish Information Commissioner who investigated and decided that the information should be disclosed. The Council appealed unsuccessfully to the Inner House of the Court of Session and now appealed to the Supreme Court.
Held: The appeal failed. The Commissioner had been entitled to reach his conclusion that disclosure of the information should be given by the Council to Mr Irvine, and that there had been no breach of the rules of natural justice in not copying the correspondence to the Council.
‘The word ‘necessary’ has to be considered in relation to the processing to which it relates. If that processing would involve an interference with the data subject’s right to respect for his private life, then the Austrian Radio case is clear authority for the proposition that the requirements of article 8(2) of the European Convention on Human Rights must be fulfilled. However, that was a case about article 7(e), where there is no express counterbalancing of the necessary processing against the rights and interests of the data subject. In a case such as this, where that balance is built into article 7(f) and condition 6, it may not matter so much where the requirements of article 8(2) are considered, as long as the overall result is compliant with them. ‘

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath
UKSC 2012/0126, [2013] UKSC 55, 2013 GWD 25-508, [2014] 1 CMLR 17, [2013] WLR(D) 307, [2013] 4 All ER 629, 2014 SC (UKSC) 1, 2013 SLT 799, [2013] IRLR 899, [2013] 1 WLR 2421, [2013] Eq LR 1006
Bailii, Bailii Summary, SC Summary, SC, WLRD
Freedom of Information (Scotland) Act 2002, Data Protection Act 1998
Scotland
Citing:
Cited – Common Services Agency v Scottish Information Commissioner HL 9-Jul-2008
An MP had asked the Agency under the 2002 Act for details of all incidents of childhood leukaemia for both sexes by year from 1990 to 2003 for all the DG (Dumfries and Galloway) postal area by census ward. The Agency replied by saying that the . .
Cited – Rechnungshof v Osterreichischer Rundfunk and others ECJ 20-May-2003
ECJ Protection of individuals with regard to the processing of personal data – Directive 95/46/EC – Protection of private life – Disclosure of data on the income of employees of bodies subject to control by the . .
Cited – Huber v Bundesrepublik Deutschland (European Citizenship) ECJ 3-Apr-2008
ECJ An Austrian businessman who had moved to Germany complained that storing data relating to him in a central register of foreign nationals discriminated against him as there was no such database for German . .
Cited – Corporate Officer of the House of Commons v The Information Commissioner and others Admn 16-May-2008
Applicants had sought disclosure of information supplied by members of Parliament in support of expenses claims. The Office appealed against an order from the Commissioner to produce that information, saying that the actions of Parliament are not . .
Cited – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
Cited – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Cited – Regina 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’, . .

Cited by:
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .

Lists of cited by and citing cases may be incomplete.

Information, Employment, Natural Justice

Leading Case

Updated: 11 November 2021; Ref: scu.513678

Regina v The Secretary of State for the Environment, ex Parte Ostler: CA 16 Mar 1976

Statutory Challenge must be timely

The applicant had not taken objection to a proposed road scheme believing wrongly that it would not affect his business. Other objectors had withdrawn because of secret re-assurances given to them by the respondent.
Held: The court was asked, in effect, whether the decision in East Elloe had been overruled by the Anisminic case. Though it had been subject to some criticism in Anisminic, that case was not directly in point, and the East Elloe decision remained binding.
The system provided for the possibility of an appeal where the aggrieved person felt that there had been some breach of natural justice, but that appeal had to be brought within the time limit provided. Such a decision stood until and unless quashed.

Lord Denning MR, Goff, Shaw LJJ
[1976] EWCA Civ 6, [1977] 1 QB 122
Bailii
Highways Act 1959
England and Wales
Citing:
Cited – Smith (Kathleen Rose) v East Elloe Rural District Council HL 26-Mar-1956
The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Ashbridge Investments Ltd v Minister of Housing and Local Government CA 1965
The Minister had decided to confirm a CPO of premises which were now alleged not to be a house as was required by the legislation under which the order was made.
Held: The court can interfere if the decision maker has taken into account a . .

Lists of cited by and citing cases may be incomplete.

Administrative, Planning, Natural Justice

Leading Case

Updated: 11 November 2021; Ref: scu.262708

James Bagg’s Case: KBD 1572

Limitations on Disenfranchisement

The cause of disfranchising a citizen, freeman, or burgess, ought to be grounded upon an Act which is against the duty of a citizen or burgess, and against the public good of the city or borough whereof, and c. and against his oath, which he took when he was sworn a freeman of the city or borough: but words of contempt, or contra bonos mores, although against the chief officer or his brethren, are not good causes of disfranchisement, nor are endeavours, and c. to do a thing against the duty or trust of his freedom.
No freeman of any corporation can be disfranchised by the corporation, unless they have authority to do it, either by the express words of the charter, or by prescription : if they have no such authority, the party ought to be convicted by course of law before he can be removed.
A removal, without hearing the party removed, is bad.
If a party is disfranchised and a writ to restore the party, or signify the cause, and c. is awarded in KB, if a sufficient cause of removal is entitled, but which is false, the Court cannot award a writ to restore the party; but the party grieved may have a special action on the case, and upon obtaining judgment a writ of restitution shall be awarded.
The return of disfranchisement ought to be certain.

[1572] EngR 202, (1572-1616) 11 Co Rep 93, (1572) 77 ER 1271
Commonlii
England and Wales
Cited by:
Cited – Shoesmith, 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 . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Elections

Leading Case

Updated: 10 November 2021; Ref: scu.432168

Dunelm (Soft Furnishings) Ltd v Baker and Another: EAT 30 Oct 2012

EAT Practice and Procedure : Amendment
Bias, misconduct and procedural irregularity
In the claim for unfair dismissal and wrongful dismissal, parties proceeded on common basis that dismissal was on 17 February 2011. In reserved Judgment, the Employment Tribunal finds that dismissal was on 1 February 2011 (16 days earlier). Neither party was given notice or opportunity to make representations. Issue of importance because (1) if there was a dismissal on 1 February 2011 it was on the basis of a fundamental breach by the employer to which the employees had made no response and (2) it pre-dated consultation with occurred between 1 February 2011 and 17 February 2011. Breach of Natural Justice.
In the same case, the Claimant’s sought 1 month’s pay in lieu of notice. In reserved Judgment, Employment Tribunal awarded 3 months on basis a further 2 months was warranted by an implied term that if dismissal was to be for redundancy (as it was) there should be at least 2 months consultation. That point not argued. Breach of Natural Justice. Claims remitted to a fresh Tribunal.
Following success on liability, ET fixes a remedy hearing. At hearing the Claimant’s make oral application for permission to add new head of liability (non-payment of mileage allowances). Those claims would be almost one year out of time. ET allows amendments and immediately proceeds to award significant sums claimed, directing itself that any prejudice to the Respondent can be addressed by an application for review. Appeal Allowed. Misdirection as to fact and law in the determination of the applications. Applications remitted to fresh ET.

Luba QC
[2012] UKEAT 0142 – 12 – 3010
Bailii
England and Wales
Citing:
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Chapman and Another v Simon CA 1994
The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application.
Racial discrimination may be established as a matter of direct primary . .

Lists of cited by and citing cases may be incomplete.

Employment, Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.467150

Attorney General’s Reference (No 1 of 1990): CACD 3 Jun 1992

The jurisdiction to stay criminal proceedings on the ground of delay is exceptional, even where the delay was unjustifiable, and a stay should rarely be imposed in the absence of any fault on the part of the complainant or prosecution, and should never be imposed where the delay was due merely to the complexity of the case or was caused or contributed to by the actions of the defendant himself. Furthermore, a stay ought not to be imposed unless the defendant showed on the balance of probabilities that owing to the delay he would suffer serious prejudice to the extent that no fair trial could be held and that the continuance of the prosecution amounted to a misuse of process.

Lord Lane CJ
Gazette 03-Jun-1992, [1992] 3 All ER 169, [1992] QB 630, [1992] 95 Crim App 296
England and Wales
Cited by:
Distinguished – Regina v Chichester Justices ex parte Stephen Alexander Crowther Admn 14-Oct-1998
The defendant sought judicial review of an order made in 1998 issuing a warrant for his committal for failure to pay a confiscation order made in 1991. He had served 6 years imprisonment, and in default of payment a further 18 months. He was . .
Followed – Attorney General’s Reference (No 2 of 2001) CACD 12-Jul-2001
When assessing whether the defendant’s right to a trial within a reasonable time had been infringed, the court should look as from the date at which he was charged, or served with a summons, and not from the date of the first interview. Although a . .
Cited – Regina v S (Crime: delay in prosecution) CACD 6-Mar-2006
The defendant appealed his conviction saying that the prosecution should have been stayed permanently because of the delay in bringing the case. He had been sentenced to 7 years imprisonment for sexual assaults committed in the 1970s.
Held: A . .
Cited – Ali, Altaf v Crown Prosecution Service, West Midlands CACD 22-Mar-2007
The defendant was first arrested in 1997, but only re-arrested in 2004. He complained that the delay affected his right to a fair trial within a proper time. The judge accepted this but the trial proceeded, the judge denying a claim of abuse of . .
Applied – Tan Soon Yin v Judge Cameron and Another PC 1992
The power at common law to impose a stay on a criminal matter is discretionary, and a stay ‘should only be employed in exceptional circumstances’.
The task for the courts is to decide: ‘whether, in all the circumstances, the situation created . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.77957

Regina v Gaming Board for Great Britain, ex Parte Benaim: CA 23 Mar 1970

A Gaming Club, Crockfords, sought the restoration of its gaming licence. It had historically found ways of circumventing the earlier Gaming Acts restrictions. The 1968 Act created the Gaming Board to assess their probity. They challenged the refusal saying that the hearing had not observed the rules of natural justice.
Lord Denning MR said: ‘Seeing the evils that have led to this legislation, the Board can and should investigate the credentials of those who make application to them. They can and should receive information from the police in this country or abroad, who know something of them. They can, and should, receive information from any other reliable source. Much of it will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification? I do not think they need tell the applicant the source of their information, if that would put their informant in peril: or otherwise be contrary to the public interest. Even in a criminal trial, a witness cannot be asked who is his informer. ‘

Lord Denning MR, Wilberforce L, Phillimore LJ
[1970] EWCA Civ 7, [1970] 2 QB 417, [1970] 2 All ER 528, [1970] 2 WLR 1009
Bailii
Gaming Act 1960, Gaming Act 1963, Gaming Act 1968
England and Wales

Licensing, Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.262770

Clenae Pty Ltd and Others v Australia and New Zealand Banking Group Ltd: 9 Apr 1999

(Supreme Court of Victoria) The court considered the issue of bias in a judge where he held shares in a company in the trial before him.
Held: The outcome of the litigation could not have realistically affected his judgment. He held a small number of shares in a large company. Charles JA said: ‘If there is a separate rule for automatic disqualification for financial interest, unrelated to a reasonable apprehension of bias, in my view the irrebuttable presumption of bias only arises (subject to questions of waiver or necessity) where the judicial officer has a direct pecuniary interest in the outcome of the proceeding.’
Winnecke J said: ‘I agree with Charles JA that authority which binds this Court does not compel us to conclude that it is the mere shareholding by a judicial officer (‘judge’) in a party which, alone, constitutes the ‘disqualifying pecuniary interest’, but rather it is the potential interest, created by that shareholding, in the subject matter or outcome of the litigation which is the disqualifying factor.’

Charles JA, Winneke P
[1999] VSCA 35, [1999] 2 VR 573
Austlii
England and Wales
Cited by:
Cited – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Cited – Locabail (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 . .

Lists of cited by and citing cases may be incomplete.

Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.195580

Berg v IML London Ltd: 2002

A judge should recuse himself in a civil case only if, subjectively, he considered that the knowledge he acquired of privileged communications disabled him from fairly continuing with the case or, objectively, a fair-minded and informed observer would conclude that there was a real possibility or a real danger that there could not be or would not be a fair trial.
Stanley Burnton J said: ‘The procedure of the court would be greatly hampered and the cost of litigation greatly increased if the court were too easily to come to the conclusion that the viewing of prejudicial irrelevant material necessarily disabled the court from continuing to hear the action. Prior to [the] Medicaments [case] it was not the case that the court would necessarily come to that conclusion as I have already indicated. In my judgment Medicaments has affected the test to be applied in such circumstances, but the effect is not as substantial as suggested by the defendant in this case. The Court of Appeal in the Medicaments case described the effect of the change in law which it was finding and did not regard that change as a substantial change. It referred to a modest adjustment of the test in Goff [1993] AC 646 . . Where a question such as that which has arisen in this case arises, in my judgment there are two aspects to the decision of the court whose recusation is sought. The first question is whether subjectively the judge considers that he is disabled from fairly continuing with the case. If he decides that he is so disabled then that normally is the end of the matter. The matter must be transferred to another judge and it can be only in the rarest cases that an appeal court would intervene to order for the hearing to continue before that judge. The decision is often said to be one within the discretion of the court, but essentially the decision is a subjective decision. That, however, is not the end of the matter.
As I have already indicated, there is a modified test as laid down in the Medicaments, which is an objective test to be applied. There are circumstances, in my judgment rare circumstances, in which whatever the subjective feeling of the judge in question, he cannot continue with the case without there being a real possibility or a real danger of there being seen to be, by a fair-minded and informed observer, an unfair trial.
The fair-minded observer will appreciate that the judge is not partial to either party, will appreciate that when the judge expresses his views as to whether or not he can continue, he is expressing those views honestly and unaffected by any connection with either party.’

Stanley Burnton J
[2002] 1 WLR 3271, [2002] All ER (D) 46, [2002] 4 All ER 87
Cited by:
Cited – Garratt v Saxby CA 18-Feb-2004
There had been a Part 36 offer to settle the action. It was disclosed inadvertently to the judge.
Held: There had been no serious procedural irregularity, and fairness and justice did not require a rehearing before different judge. . .
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.464845

Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2): HL 15 Jan 1999

A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign against the applicant, and as a party.
Held: The House is unfettered by statute in its freedom to correct an injustice it had itself created. No financial interest was involved. Here there was a distinction between the two arms of the Amnesty International organisation, but that was not sufficient. Lord Hoffmann was an officer of the charitable arm, and that was sufficient to make him a party to the case. The maxim ‘nemo judex in sua causa’ was to be applied. The fact that a person has the necessary training and qualifications to resist any tendency towards bias is not relevant when considering whether there was an appearance of bias. The decision was set aside.
Lord Browne-Wilkinson said: ‘My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.’ and
‘It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25 November 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct. The facts of this present case are exceptional. The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.’s objects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest.’
Lord Hutton said: ‘there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.’

Lord Browne-Wilkinson, Lord Goff of Chieveley Lord Nolan, Lord Hope of Craighead, Lord Hutton
Times 18-Jan-1999, Gazette 10-Feb-1999, [1999] UKHL 1, [2000] 1 AC 119, [1999] 1 All ER 577, [1999] 2 WLR 272, 6 BHRC 1, [1999] NLJR 88, [1999] UKHL 52
Bailii, Bailii
England and Wales
Citing:
Cited – McGovern v Attorney-General ChD 1982
Amnesty International established a trust with a view to obtaining charitable status for some of its activities.
Held: The trust established to promote certain of its objects was not charitable because it was established for political purpose; . .
Cited – Regina 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 . .
Cited – Webb and Hay v The Queen 30-Jun-1994
(Australia) Criminal Law – Jury – Impartiality – Murder trial – Juror giving flowers to victim’s mother – Whether juror or jury to be discharged Appropriate test – Reasonable apprehension of lack of impartiality or real danger of lack of . .
Cited – Cassell and Co Ltd v Broome (No 2) HL 24-Feb-1972
Their Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point. As the ultimate court of appeal, the House has power to correct any injustice . .
Cited – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .

Leading Case

Updated: 10 November 2021; Ref: scu.158984

Prohibitions Del Roy; The Case De Modo Decimandi,: CCP 1572

Reservation of Legal Issues to those Trained

The King, James I had sat as a judge to make a decision in a court case.
Held: Edward Coke CJ overturned the decision, holding that such decisions must be made only by those with legal training and in accordance with and subject to the rule of law. Cases were ‘not to be decided by natural reason but by artificial reason and judgement of law, which law is an art which requires long long and experience.’

Edward Coke CJ
[1572] EngR 303, (1572-1616) 12 Co Rep 63, (1572) 77 ER 1342, [1572] EngR 389, (1572-1616) 13 Co Rep 37, (1572) 77 ER 1448
Commonlii, Commonlii
England and Wales

Legal Professions, Constitutional, Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.432269

In Re Medicaments and Related Classes of Goods (No 2): RPC 17 Nov 2000

Part way into a trial, one of the judges in a case applied for a position with a company. She discovered that a director of that company was due to give evidence. She brought the circumstances to the attention of the remaining court and parties. She was informed that there was no vacancy, and agreed to undertake not to apply again for a period of two years after the trial. She refused to recuse herself.
Held: The Human Rights test was the presence of a cause for apparent bias. Where she would have no further immediate contact with the firm, there was no such bias. The occasion for any suspicion of bias had been removed.
Lightman J described the issue: ‘There is no suggestion in this case of actual bias on the part of Dr Rowlatt. The essential issue underlying the Applications is whether the actions of Dr Rowlatt in relation to her application for a job at Frontier Economics (‘Frontier’) gives rise to a real danger of bias or reasonable apprehension of bias. It is common ground that: (1) the relevant circumstances by reference to which the issue is to be determined are the circumstances as they exist today when the Applications are being determined; (2) (as is now quite clear) Dr Rowlatt today has no prospect of any employment by Frontier, whatever prospect she may have entertained before or after the 7th November Fax; and (3) Mr Biro’s evidence is central to the DG’s case. As we understand the concerns expressed by Mr Cran on behalf of the Respondents, they are threefold: (1) that Dr Rowlatt by making the application to Frontier in the course of the proceedings showed a partiality which cannot be removed or undone; . . . (2) that Dr Rowlatt will feel a sense of resentment against the Respondents for preventing her from obtaining a job with Frontier; . . . (3) that Dr Rowlatt will feel a sense of gratitude to Frontier for writing the Frontier Letter which ‘got her off the hook’ by publicly bringing to an end any prospect of employment and thereby improving the prospects that the Applications would fail. . . .Dr Rowlatt gave her provisional view in the fax dated the 13th November 2000 that she ought not to recuse herself. She reconsidered her position after full argument had been addressed to the Court and that remains her final view. In the circumstances the Court must itself decide (in effect if not in form) whether she is wrong, for the Court must independently decide the question whether she should recuse herself as the preliminary to deciding whether the Court should accede to the application that the Court should recuse itself.’

Lightman J
Gazette 11-Jan-2001
England and Wales
Citing:
See Also – In Re Medicaments and Related Classes of Goods RPC 14-Apr-1999
Before granting leave to review the exemption of a class of goods from the resale price maintenance prohibition, there must be established prima facie evidence of a material change in circumstances, which might have led the earlier court to a . .

Cited by:
Appeal from – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
See also – In 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 . .

Lists of cited by and citing cases may be incomplete.

Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.82056

Ahmed v Arearose Ltd: EAT 5 Feb 2016

EAT Practice and Procedure: Right To Be Heard – The Appellant’s claim form was rejected for non-compliance with the early conciliation provisions. He applied for a reconsideration under Rule 13 of the Employment Tribunal Rules of Procedure, but the application was rejected by the Employment Judge without him being given a hearing as required by Rule 13(3). It seemed to the Employment Appeal Tribunal that there may be issues as to whether the proceedings were exempt from the early conciliation provisions under Regulation 3 of SI2014/254, whether a certificate the Appellant had obtained was valid for the purposes of those provisions and whether a subsequently obtained certificate could rectify a defect in a claim form arising from it not containing an early conciliation number. The application should be remitted to be reconsidered by another Employment Judge at a hearing at which both parties could attend.

Shanks HHJ
[2016] UKEAT 0314 – 15 – 0502
Bailii
England and Wales

Employment, Natural Justice

Updated: 09 November 2021; Ref: scu.562530

Murungaru v Secretary of State for the Home Department and others: CA 12 Sep 2008

The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to prevent his seeing some the evidence on which the orders had been made. A special advocate was requested by the respondent.
Held: In this case the human rights point added nothing to his case: he had the right to a fair hearing. While some contract rights had been held to be possessions under the Convention it was not clear that a right to receive medical treatment amounted to such.
As to the need for a special advocate, the request failed: ‘applying the principles which ought to govern requests for a special advocate in proceedings of this kind, the material covered by the PII certificate does not warrant the appointment of a special advocate. There is no reason to think that the judge, in what is now purely a common law due process claim, cannot do what a special advocate might otherwise do by way of critical examination of the closed material in the claimant’s absence, assuming that the material turns out to have any useful bearing at all.’
Sedley LJ described the special advocate’s role as being ‘to test by cross-examination, evidence and argument the strength of the case for non-disclosure’, and, if the case for non-disclosure is made out, ‘to do what he or she can to protect the interests of [the other party], a task which has to be carried out without taking any instructions [from the other party or his lawyers] on any aspect of the closed material’.

Sedley LJ, Jacob LJ, Lewison LJ
[2008] EWCA Civ 1015, [2009] INLR 180
Bailii
European Convention on Human Rights 6(1)
England and Wales
Citing:
See Also – Murungaru v Secretary of State for the Home Department and others Admn 4-Oct-2006
The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with . .
Appeal from – Murungaru, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Nov-2006
The applicant, a former minister in the Government of Kenya challenged the revocation of entry visas. This had been done on the basis of evidence withheld from him, and the court considered the way in which that evidence could be used by the use of . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Malik 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 . .
Cited – Maaouia v France ECHR 5-Oct-2000
A deportation order, made against a Tunisian, was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to . .
Cited – Van Marle And Others v The Netherlands ECHR 26-Jun-1986
The applicants were accountants who had practised as such for some years when a new statute came into force which required then to register. Their applications were refused.
Held: Article 1PI was engaged. In paragraphs 41 and 42 the Court said . .
Cited – Secretary 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 – Mellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
Cited – Tre Traktorer Aktiebolag v Sweden ECHR 7-Jul-1989
An alcohol licence for a restaurant was withdrawn with immediate effect because of financial irregularities, with the result that the restaurant business collapsed.
Held: ‘The government argued that a licence to sell alcoholic beverages could . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Torkington v Magee 11-Jul-1902
Chose in Action defined
The effect of the 1873 Act was essentially procedural and it did not render choses in action that had not previously been assignable in equity capable of assignment.
Channell J defined a debt or other legal chose in action: ”Chose in Action’ . .
Cited – Karni v Sweden ECHR 8-Mar-1988
(Commission) The applicant was a doctor who, on his return to Sweden, was entered on the list of those affiliated to the Social Security System which meant he could carry on a private medical practice and receive payment for treatment provided to . .
Cited – Association of General Practitioners v Denmark ECHR 1989
The contractual entitlement of Danish GPs under a collective agreement to indexation of their remuneration was accepted by the Commission as amounting to a possession under the Convention. . .
Cited – Nicholds and others v Security Industry Authority Admn 19-Jul-2006
Application for judicial review of, in substance, the licensing criteria prepared and published by the Defendant, the Security Industry Authority. The applicants were door supervisors refused licenses for previous convictions. . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Gasus Dosier-Und Fodertechnik Gmbh v The Netherlands ECHR 23-Feb-1995
Even where an interference in property rights involved the complete loss of a person’s economic interest in an asset for the benefit of the State, an absence of compensation might still be compatible with Article 1. ‘The Court recalls that the . .

Cited by:
Cited – Times 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 . .
Cited – Tariq 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 . .
Cited – Al 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 . .
Cited – Al 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 . .
Cited – Bank 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 . .
Cited – Sher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
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 . .
Cited – Home 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 . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Natural Justice, Litigation Practice

Updated: 09 November 2021; Ref: scu.276226

Capel v Child: 1832

A bishop issued a requisition under statute, requiring the Vicar of W to nominate a Curate with a stipend, on the ground that it appeared to the bishop, of his own knowledge, that the ecclesiastical duties of the vicarage and parish church of W were inadequately performed, by reason of the vicar’s negligence. The vicar appointed no curate and did not appeal to the Archbishop. The bishop after 3 months licensed the reverend B as Curate of W, with a stipend. The vicar refused to allow B to officiate; upon which the bishop issued a mandate, or summons, to show cause why the vicar should not pay the stipend due, and ultimately proceeded to sequestration.
Held:
The requisition upon which the whole of the proceedings were founded was in the nature of a judgment, and void as the party had had no opportunity of being heard
Such a requisition ought to state particular instances of negligence, or show how the incumbent was negligent.
Lord Lyndhurst CB said of the statute: ‘Here is a new jurisdiction given – a new authority given: a power is given to the bishop to pronounce a judgment; and, according to every principle of law and equity, such judgment could not be pronounced, or, if pronounced, could not for a moment be sustained, unless the party in the first instance had the opportunity of being heard in his defence, which in this case he had not; and not only no charge is made against him which he had an opportunity of meeting, but he has not been summoned that he might meet any charge.’
Baron Bayley said: ‘ Upon the general principles of law, it would have been essential, if the bishop had proceeded by way of affidavit, to have given the opposite party an opportunity of being heard. When the bishop proceeds on his own knowledge, I am of opinion also that it cannot possibly, and within the meaning of this Act, appear to the satisfaction of the bishop, and of his own knowledge, unless he gives the party an opportunity of being heard, in answer to that which the bishop states on his own knowledge to be the foundation on which he proceeds . . It would be quite sufficient if the bishop were to call the party before him, and to state to him the grounds on which he thought the duties were inadequately per- formed, by reason of his negligence; and he should have asked whether he had or had not any grounds on which he could answer that charge; but, is it not a common principle in every case which has in itself the character of a judicial proceeding, that the party against whom the judgment is to operate should have an opportunity of being heard? ‘

Lord Lyndhurst CB, Baron Bayley
[1832] EngR 40, (1832) 2 Cr and J 558, (1832) 149 ER 235
Commonlii
England and Wales
Cited by:
Cited – Fisher v Jackson ChD 7-Mar-1891
The deed of trust establishing an endowed school provided that the master of the school should he appointed by the vicars of three specified parishes, and power was given to the three vicars to remove the master for certain specified causes. The . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.318988

Helow v Secretary of State for the Home Department and Another: HL 22 Oct 2008

The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought asylum, saying that she had fled Palestine after taking legal action against the president of Israel.
Held: The claimant’s appeal was dismissed. A judge who had expressed, or was President of an Association which had expressed, views of the nature summarised and set out above could not sit on an application such as this. A fair-minded observer would regard such a judge as too closely and overtly committed to supporting the cause of Israel generally and of Mr Sharon in relation to the Sabra/Shatila massacre. It would not be appropriate for her to decide a case in which the appellant was relying on her past conduct and condemnation regarding Israel’s and Mr Sharon’s involvement in the Sabra/Shatila massacre as a main basis for her fear of reprisals if she was returned to Lebanon.
However, there was no basis for attributing the more extreme views of senior members of the organistion to the judge. It was not suggested that she had expressed any such view, and nor did the association’s objects encompass such views.
Lord Hope described the characteristics of the notional fair-minded and informed observer: ‘The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The ‘real possibility’ test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
3. Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.’

Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Cullen of Whitekirk, Lord Mance
[2008] UKHL 62, [2008] 1 WLR 2416, 2008 SCLR 830, (2008) 152(41) SJLB 29, [2009] 2 All ER 1031, 2009 SC (HL) 1, 2008 GWD 35-520, 2008 SLT 967
Bailii, HL, Times
Nationality, Immigration and Asylum Act 2002
Scotland
Citing:
Appeal from – Helow v Advocate General for Scotland and Another SCS 16-Jan-2007
. .
Cited – Locabail (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 . .
Cited – Johnson 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 . .
Cited – Porter 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 – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Davidson 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.
Cited – Gillies 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 . .
Cited – Meerabux 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 . .
Cited – Mamatkulov and Askarov v Turkey ECHR 4-Feb-2005
(Grand Chamber) The applicants had resisted extradition to Uzbekistan from Turkey to stand trial on very serious charges, saying that if returned they would be tortured. There was material to show that that was not a fanciful fear. On application . .
Cited – Meerabux 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 . .

Cited by:
Cited – O’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 . .
Cited – Ameyaw 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.

Legal Professions, Immigration, Natural Justice

Updated: 09 November 2021; Ref: scu.277128

Alubankudi (Appearance of Bias): UTIAC 23 Sep 2015

Need for Judicial Self-Awareness

(i) One of the important elements of apparent bias is that the hypothetical fair minded observer is properly informed and possessed of all material facts.
(ii) The interface between the judiciary and society is of greater importance nowadays than it has ever been. Judges must have their antennae tuned to the immediate and wider audiences, alert to the sensitivities and perceptions of others, particularly in a multi-cultural society. Statements such as that made by the FtT Judge in this case that ‘the United Kingdom is not a retirement home for the rest of the world’ had the potential to cause offence and should be avoided.

McCloskey P J, Canavan UTJ
[2015] UKUT 542 (IAC)
Bailii
England and Wales

Immigration, Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.553214

The 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.
Held: The claim failed: ‘I am wholly unconvinced that a legally qualified chair has two discrete and distinct functions subject to different criteria of conduct, so that, when he advises his fellow panel members, the jurisprudence that has built up around assessors applies.’
Although not formally judicial bodies, GMC disciplinary panels – FPPs and IOPs, and their predecessors or successors – exercise a judicial function, in respect of which the requirement for a fair hearing is protected by both article 6 of the ECHR and the common law.
Where a legal member of a tribunal expresses a view on the law to other members, he can properly be described as ‘advising’ those other members, without engaging the jurisprudence of legal assessors, because the member is a full member of the tribunal who participates fully in the decision-making process and thus attracting all of the jurisprudence that attaches to judges and other legal members who exercise full judicial function within a mixed tribunal.

Hickinbottom J
[2016] EWHC 1015 (Admin), [2016] 4 WLR 89, [2016] WLR(D) 237
Bailii, WLRD
Medical Act 1983, General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015
England and Wales
Citing:
Cited – Fox 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 – 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 . .
Cited – Le Compte, Van Leuven And De Meyere v Belgium ECHR 18-Oct-1982
Even where ‘jurisdictional organs of professional associations’ are set up: ‘Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the . .
Cited – Clark (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 . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights, Natural Justice

Updated: 09 November 2021; Ref: scu.563227

The Grand Junction Canal Company v Dimes: 1 May 1849

In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in the company, and a motion was made to discharge the order of the Lord Chancellor on the ground of his interest in the matter rendering it void.
Held: The Master of the Rolls was of opinion that the motion ought to be refused with costs.
When the Lord Chancellor is a party to a suit, the bill is addressed to the King, and the cause is heard by the Master of the Rolls; but the decree is formally and technically completed, made final, and enrolled as the decree of the King. But where a public company, in which the Lord Chancellor has shares, are suitors, the bill cannot properly be addressed to the Queen in Chancery.
It is a general rule that no one ought to be a judge in his own cause, and no Judge ought, by himself or his deputy, to hear and determine a cause, or make an order, or do any judicial act, in a cause in which he has a personal interest ; but even in a case of disputed interest, a Judge is not incapacitated from making an order, if, by refusing to do so, justice would be denied.
There is not, and cannot, in any case, be an incapacity to make any orderor do any act in a matter within the proper, peculiar and exclusive jurisdiction of a Judge’s office, if such order or act be necessary to prevent a failure of justice. Whatever a Judge’s interest may be, if justice cannot be had, without an act or order of his, he cannot lawfully refuse to do the act, or make the order required. In cases where questions of this kind arise, the Judge must have a certain degree of diseretion, and, having the capacity, his duty does not extend further than the necessity of the case requires ; if there are other Judges having co-ordinate jurisdiction, he may and ought to refuse to act ; but if he, like the Lord Chancellor, should be the sole Judge having jurisdiction in the case it is otherwise.
The signing of a decree of a subordinate Judge by the Lord Chancellor is a judicial act.

[1849] EngR 576, (1849) 12 Beav 63, (1849) 50 ER 984
Commonlii
Citing:
Appeal from – Dimes v The Company of Proprietors of The Grand Junction Canal CExC 1846
By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .

Cited by:
See Also – The Grand Junction Canal Company v Dimes 2-Jun-1849
The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain . .
See Also – The Grand Junction Canal Company v Dimes CA 4-Feb-1850
The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
See Also – Dimes v Lord Cottenham 2-May-1850
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
See Also – In Re Dimes 26-Jul-1850
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .
See Also – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
See Also – Dimes v The Proprietors Of The Grand Junction Canal and Others 29-Jun-1852
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.298881

The 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 Adam before he was called upon to make his defence.’

Fortescue J
[1748] EngR 223, (1748) Fort 202, (1748) 92 ER 818 (B)
Commonlii
England and Wales
Cited by:
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.379785

Baker v Quantum Clothing Group and Others: CA 5 Jun 2009

The court considered a request that one of the three judges (Sedley LJ) recuse himself on the grounds of apparent bias. It was a case claiming damages for personal injury in the form of hearing losses incurred at work. Sedley LJ was Hon President of the British Tinnitus Association (BTA). He had declared this and invited objections before the hearing. The defendant later unearthed other cross connections, these were put, the judge took advice of leading counsel, and did not recuse himself. Other connections later became apparent allegedly between the claimant’s solicitors and the BTA.
Held: The judge had acted correctly. The objections included false assertions as to the activities of the BTA and exaggerated the connection between the claimant’s solicitors and the BTA. As to the argument that a judge with trinities should not hear a case on hearing loss: ‘It amounts to a contention that no judge with any particular disability should hear a case involving that disability. A judge with poor eyesight or only one eye could not hear a case about an eye injury, a judge in a wheelchair could not hear a case about an injury which made the victim wheelchair bound and so on. And, taken to its logical conclusion, the argument would meant that a disabled judge could not hear a case about disability living allowance, or a woman judge hear a case about sexual discrimination against a woman. . . This objection . . . Has no substance.’
Smith LJ considered the interpretation by Asquith LJ of the words ‘reasonably practicable’ and said that, in referring to the ‘quantum of risk’, Asquith LJ must have been referring to the gravity of the harm which might occur as well as the likelihood of its occurrence.

Jacob LJ
[2009] EWCA Civ 566, Times 18-Jun-2009, [2009] CP Rep 38
Bailii
England and Wales
Citing:
Cited – Edwards v National Coal Board CA 1949
A regulation encompassed a requirement to take specified action, so far as it is reasonably practicable, in order to prevent danger. Asquith LJ discussed the term: ”Reasonably practicable’ . . seems to me to imply that a computation must be made by . .
See Also – Baker v Quantum Clothing Group Ltd and Another CA 11-Jun-2008
Application by claimant for order that the respondents would be responsible for their own costs of the appeal irrespective of its outcome. . .
See Also – Baker v Quantum Clothing Group CA 22-May-2009
The court considered the responsibility of employers for hearing losses resulting from exposure to noise at a level not at the time appreciated to cause a risk of injury. Smith LJ considered the interpretation by Asquith LJ of the words ‘reasonably . .
See Also – Baker v Quantum Clothing Group Ltd CA 28-Jun-2007
. .

Cited by:
Cited – Mann v Northern Electric Distribution Ltd CA 26-Feb-2010
Climb over high fence was unforeseeable
The claimant appealed against dismissal of his claim for damages after suffering very severe injury when climbing onto an electricity substation. He said that the defendant had not satisfied its statutory obligation to fence off the substation. The . .
See Also – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Litigation Practice, Personal Injury

Updated: 09 November 2021; Ref: scu.346798

Kioa v West: 18 Dec 1985

kioa_westHCA1985

(High Court of Australia) Immigration and Aliens – Deportation – Power of Minister – Principles of natural justice – Whether applicable – Standing as Australian citizen of infant daughter of aliens – Intended deportation order – Whether notice required – Migration Act 1958 (Cth), ss. 6, 6A, 7, 18.
Administrative Law – Decision – Natural justice – Procedural fairness – Order for deportation of aliens – Review of decision – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 13.
The court described the essence of procedural fairness. Mason J said: ‘In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations . .’
Brennan J stated: ‘a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise; . . the person whose interests are likely to be affected does not have to given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance . . nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit unconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information . .’

Gibbs CJ, Mason, Wilson, Brennan, Deane JJ
(1985) 60 ALJR 113, (1985) 159 CLR 550, [1985] HCA 81
Austlii
Cited by:
Cited – Regina 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: . .
Cited – Save 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.

Commonwealth, Administrative, Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.222098

Taylor 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 of solicitors representing the opposing party, and they later appealed his judgment. The appeal was rejected, but then the party discovered that, contrary to what the judge had said, to the effect that he had not instructed the firm for some time, he had had his will drawn up by the firm in the days before the hearing, and was not to be billed.
Held: It was possible for the court to re-open a case where there was a manifest injustice, and there was no available remedy. If the remedy would be to take the case to the House of Lords, but leave would be refused, the court could also re-open the case. This jurisdiction must be used only with great caution. It is a principle of common law that a final judgment should be just that. Nevertheless, the allegation of bias in the judge was not made out. The test in cases of apparent bias was if, in all the circumstances, a fair-minded and informed observer would see a real possibility that the tribunal was biased. The normal contacts between members of the legal profession should not lead to that suspicion. The informed observer of today can be expected to be aware of the legal traditions and culture of this jurisdiction.
There is a distinction between the question whether a court has jurisdiction and how it exercises the jurisdiction given by statute. A court does not need to be given express power to decide upon the procedure which it wishes to adopt. Such a power is implicit in it being required to determine appeals. Lord Woolf explained the difference between the implied or implicit jurisdiction of the court and the way in which that jurisdiction is exercised: ‘It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.’

Lord Woolf CJ, Lord Phillips, And, Lord Justice Ward, Lord Justice Brooke, Lord Justice Chadwick
Times 04-Feb-2002, Gazette 21-Mar-2002, [2002] EWCA Civ 90, [2002] 2 All ER 353, [2002] 3 WLR 640, [2003] QB 528
Bailii
England and Wales
Citing:
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – In re Barrell Enterprises CA 1972
A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the . .
Cited – Flower v Lloyd CA 1877
The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits . .
Cited – Porter 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 – Taylor and Another v Lawrence and Another CA 25-Jan-2001
Boundary dispute appeal – whether court has apparent bias. The court must ask ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility . . that the tribunal was biased.’ . .
See Also – Taylor and Another v Lawrence and Another CA 25-Jan-2001
Boundary dispute appeal – whether court has apparent bias. The court must ask ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility . . that the tribunal was biased.’ . .

Cited by:
Cited – Seray-Wurie v Hackney London Borough Council CA 25-Jun-2002
The claimant had applied for and been granted its costs certificate by default. The respondent claimed it had sent its point of issue notice in time. The council now applied under the rule for the court itself to re-open the decision to allow the . .
Cited – Regina v Moore CACD 12-May-2003
The applicant had been convicted of contempt of court, but succeeded on appeal. Costs had been ordered in his favour, but the matter had been referred back to the court to consider the extent of its powers on such an occasion.
Held: The making . .
Cited – 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 . .
Cited – Donovan Crawford Regardless Limited Alma Crawford v Financial Institutions Services Limited PC 19-Jun-2003
PC (Jamaica) The petitioners sought leave to appeal to the Privy Council. They had an appeal as of right. They now sought special leave, complaining that the Court in Jamaca had granted leave subject to them . .
Cited – G v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
Cited – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
Cited – Roberts v Parole Board CA 28-Jul-2004
The discretionary life-prisoner faced a parole board. The Secretary of State wished to present evidence, but wanted the witness to be protected. The Parole Board appointed special counsel to hear the evidence on behalf of the prisoner on terms that . .
Applied – Re U (A Child) CA 24-Feb-2005
The applicant sought a second appeal saying there was fresh evidence.
Held: Applying Taylor -v- Lawrence, a second appeal could only be entertained where it was shown that the earlier judicial process had been critically undermined. It must be . .
Cited – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
Cited – AWG Group Ltd and Another v Morrison and Another ChD 1-Dec-2005
Application was made for the judge to recuse himself from a forthcoming trial when he indicated that an intended witness was known to him personally.
Held: The test to be applied was to include: ‘all circumstances which have a bearing on the . .
Cited – Morrison 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 . .
Cited – In re S (a child) and W (a child); KSJ v WRW CA 5-Nov-2008
The mother sought leave to appeal against orders made for the financial support of her children. The parties had been involved in very protracted and bitter litigation.
Held: The appeals had no reasonable prospect of success and were . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Asda Stores Ltd v Thompson, Pullan, and Caller EAT 16-Jun-2003
The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of . .
Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Cited – Sherry v The Queen PC 4-Mar-2013
Discretion as to credit for remand time
(Guernsey) In 1980 the appellant had been sentenced to three months imprisonment. He had spent 10 days on remand, but no allowance was given for that time. He gave notice of appeal, but after being released on open remand, he failed to appear at his . .
Cited – Patel, Re Defendant’s Cost Order CACD 6-Jul-2012
The defendant had been granted a defendant costs order, but he had not complied with the Rules by first outlining the type of costs and amount claimed’ and the Court had not required compliance. He had successfully appealed against a conviction for . .
Cited – Guy v Barclays Bank Plc CA 8-Dec-2010
In an earlier action the claimant said that he had been defraused of land by a forged transfer. The transfereee had charged the land to the respondent bank who in that action gained a decision that its charge was effective, the transfer being . .
Mentioned – Gold Harp Properties Ltd v Macleod and Others CA 29-Jul-2014
The company appealed against an order re-instating to the register leases which the company said it had forfeited for non-payment of rent. After the forfeiture, the landlord had granted new leases. It appealed saying that exceptional circumstances . .
Cited – Yasain, Regina v CACD 16-Jul-2015
The Court was asked as to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Cited – Ameyaw 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, Constitutional, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.167558

Craig v Kanssen: CA 1943

There had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular.
Held: In the exercise of its inherent jurisdiction, the Court was entitled to set it aside without the need for an appeal. A person who is affected by an order of the Court which can properly be described as a nullity, is entitled ex debito justitiae to have it set aside. There is an inherent jurisdiction to set aside a determination made where there has been a failure to observe the principle that a person against whom a charge or claim is made must be given a reasonable opportunity of appearing and presenting his or her case.

Lord Greene MR
[1943] 1 KB 256, [1943] 1 All ER 108
England and Wales
Cited by:
Cited – Regina v Lord Chancellor and others ex parte Riniker CA 28-Feb-1997
The applicant sought judicial review of a refusal of her request that a judgment of the Court of Appeal should not be published.
Held: The applicants complaints were not well founded. ‘Her attempt to restrain publication of the Court of Appeal . .
Criticised – In re Pritchard CA 1963
An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that . .
Obiter remarks criticised – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.227950

Bushell v Secretary of State for the Environment: HL 7 Feb 1980

Practical Realities of Planning Decisions

The House considered planning procedures adopted on the construction of two new stretches of motorway, and in particular as to whether the Secretary of State had acted unlawfully in refusing to allow objectors to the scheme to cross-examine the Department’s witnesses.
Held: He had not acted unlawfully (Lord Edmud-Davies dissenting).
Lord Diplock said: ‘What is fair procedure is to be judged not in the light of constitutional fictions as to the relationship between the minister and the other servants of the Crown who serve in the government department of which he is the head, but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached. To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament’s intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise.’
and ‘The subject matter of [a local inquiry] is the objections to the proposed scheme that have been received by the minister from local authorities and from private persons in the vicinity of the proposed stretch of motorway whose interests may be adversely affected, and in consequence of which he is required… to hold the inquiry. The purpose of the inquiry is to provide the minister with as much information about those objections as will ensure that in reaching his decision he will have weighed the harm to local interests and private persons who may be adversely affected by the scheme against the public benefit which the scheme is likely to achieve and will not have failed to take into consideration any matters which he ought to have taken into consideration.’
Lord Edmund-Davies (dissenting) spoke of the well established basic principle that a defendant should have an opportunity of testing the evidence against him unless there are good and cogent reasons why that is either impossible or undesirable. He said: ‘The general law may, I think, be summarised in this way:
(a) In holding an administrative inquiry (such as that presently being considered) the inspector was performing quasi-judicial duties.
(b) He must therefore discharge them in accordance with the rules of natural justice
(c) Natural justice requires that objectors (no less than departmental representatives) be allowed to cross-examine witnesses called for the other side on all relevant matters, be they matters of fact or matters of expert opinion.
(d) In the exercise of jurisdiction outside the field of criminal law, the only restrictions on cross-examination are those general and well-defined exclusionary rules which govern the admissibility of relevant evidence (as to which reference may conveniently be had to Cross on Evidence, 5th ed (1979) p.17); beyond those restrictions there is no discretion on the civil side to exclude cross-examination on relevant matters.’

Lord Diplock, Viscount Dilhorne, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Lane
[1981] AC 75, [1980] UKHL 1, [1980] 2 All ER 608, [1980] 3 WLR 22, (1980) 144 JP 387, (1980) 78 LGR 269
Bailii
Highways Act 1959
England and Wales
Cited by:
Cited – National Association of Health Stores and Another, Regina (on the Application of) v Department of Health CA 22-Feb-2005
Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
Cited – Regina v Secretary of State for Education ex parte S QBD 21-Dec-1993
The Secretary of State is to disclose all advice on appeal against special needs assessment. . .
Cited – Terence Geoffrey Best and others v Secretary of State for Environment v Bass Holdings Limited v South Somerset District Council v Tesco Stores Limited Admn 5-Mar-1997
Counsel for an objector in a planning case submitted that the contents of an incoming letter lying in the Department’s postroom were imputedly known to the Secretary of State.
Held: The judge generously described the submission as having an . .
Explained – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Eisai 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 – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Cited – Save 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.

Administrative, Planning, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.222908

Singh v The Secretary of State for The Home Department: CA 27 May 2016

The claimant said that the Judge in the first Tier Tribunal had made remarks before the hearing which suggested bias against the claimant.
Held: The appeal failed. There was in this case no adequate evidence of the tribunal having shown bias.
The court set out the following observations on granting permission to appeal on such grounds in the absence of rules on the topic for the Tribunal: ‘(1) An allegation of bias or misconduct can only too easily be raised by a disgruntled litigant. It is therefore important that any application for permission to appeal, if based (in whole or part) on such a ground, is closely scrutinised when consideration is given as to whether permission to appeal should be granted. Such an allegation, if to be sufficient to merit the grant of permission at all, should ordinarily be expected to be properly particularised and appropriately evidenced.
(2) If an allegation of bias or misconduct is raised which is adjudged sufficient to merit the grant of permission to appeal then it should be normal practice for the Upper Tribunal thereafter to obtain the written comments of the judge concerned: both in fairness to the judge and to provide the Upper Tribunal with a fuller picture.
(3) Such written comments of the judge, where obtained, should be provided to the parties for the purposes of the appeal hearing in the Upper Tribunal. In addition, such written comments should be retained on the file pending any possible further appeal to the Court of Appeal (the present case indicates the potential awkwardness arising from that failure).
(4) Proceedings in the First-tier Tribunal are not ordinarily recorded (it is not a court of record) and no transcript of the hearing will be available. There may be some cases where it may also be necessary to obtain the Tribunal Judge’s own note or record of the entire hearing.
(5) It will normally be likely in such as the present cases to be of assistance to the Upper Tribunal to know what the advocate for the respondent has to say as to what happened or what was said before the First-tier Tribunal. In the present case neither the Upper Tribunal nor this court had the assistance of any such observations. It should be borne in mind that to provide such observations is the more likely to help produce a fuller and more accurate picture of what actually happened or was said in the First-tier Tribunal. There may be cases where the advocate concerned has no precise note or recollection. In that case, the Upper Tribunal at least can be so told.
(6) Whether oral evidence is needed at the hearing of the appeal on the issue of what happened or was said below should be carefully considered by the parties.
(7) Reflecting all the foregoing, it is likely to be important, in appeals of this nature, for the file to be reviewed and any directions given by an Upper Tribunal Judge in good time before the substantive appeal hearing.’

[2016] EWCA Civ 492, [2016] WLR(D) 294
Bailii, WLRD
England and Wales
Citing:
Cited – Porter 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.

Natural Justice, Litigation Practice

Updated: 02 November 2021; Ref: scu.565356

A v B: EAT 14 Nov 2002

The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation took over two years during which time the claimant was prevented from speaking to anybody at the home, and therefore from preparing his defence. The authority withheld inconsistent statements from the employee and the disciplinary hearing. He was dismissed. The tribunal did not accept that the standards of proof of such serious allegations were in any way different, and rejected the claimant’s claim for unfair dismissal.
Held: The employee’s appeal succeeded. Employers must take seriously their responsibilities to conduct a fair investigation where, as here, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite.
Furthermore the delays here amounted to grossly improper delays in the dismissal procedures.
The relevant circumstances did include a consideration of the gravity of the charges and their potential effect upon the employee, and ‘Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.’
and ‘The second point raised by this appeal concerns the approach of employers to allegations of misconduct where, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved. That is not the same as saying that they disbelieve the complainant. For example, they may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for an employee who has given years of good service to have acted in the way alleged. In my view, it would be perfectly proper in such a case for the employer to give the alleged wrong-doer the benefit of the doubt without feeling compelled to have to come down in favour of one side or the other.’
and ‘. . no reasonable Tribunal properly directing itself in law could have so concluded. We think that the Tribunal in this case focused too much on whether the defects actually affected the ultimate decision. In so doing they approached the matter wrongly as a matter of law. In any event we do not consider this is a case where one can say that the decision would inevitably have been the same, even if the proper procedures had been complied with.’

The Honourable Mr Justice Elias
EAT/1167/01, [2002] UKEAT 1167 – 01 – 1411, [2003] IRLR 405
Bailii
England and Wales
Citing:
Cited – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – RSPCA v Cruden EAT 1986
The dismissal of an employee of the RSPCA was unfair simply because of a delay with no good reason of some 7 months in initiating proceedings. This was even though the employee had suffered no prejudice as a result of the delay.
If a . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Inner London Education Authority v Gravit EAT 1988
The standard of reasonableness of an inquiry into an employee’s misconduct can depend upon the state of the case against him or her. Wood J said: ‘in one extreme there will be cases where the employee is virtually caught in the act and at the other . .
Cited – Foley v Post Office EAT 1-Mar-1999
. .
Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Cited – Hussain v Elonex Plc CA 17-Mar-1999
The claimant appealed against a finding that he had not been unfairly dismissed. He said that the procedure adopted had been unfair, since he had not had opportunity to see the statements provided to his employer by independent witnesses of the . .

Cited by:
Cited – Styles v London Borough of Southwark EAT 12-Apr-2006
EAT Dismissal for misconduct. Tribunal concluded that whilst there were certain procedural failings, the dismissal was fair. Were they entitled to reach that conclusion or were the failings, considered . .
Cited – Wilmot and others v Selvarajan EAT 12-Oct-2007
EAT Unfair Dismissal – Reasonableness of dismissal / Automatically unfair reasons
Disability Discrimination – Reasonable adjustments
Race discrimination – Victimisation
Ordinary unfair dismissal . .
Cited – Adelusi v HM Prison Service EAT 7-Dec-2007
EAT Unfair dismissal – Reasonableness of dismissal
Practice and Procedure – Perversity
Alleged assault by prison officer on prisoner. Dismissal for misconduct. Fairness under Burchell. Whether ET . .
Cited – B v A and Another EAT 17-Jun-2008
EAT HARASSMENT: Conduct

JURISDICTIONAL POINTS: Extension of time: just and equitable

C was found to have been the subject of sexual harassment. Over a period of years she had been bullied and coerced into . .
Cited – Ministry of Defence v Botham EAT 1-Sep-2008
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
The Employment Tribunal did not err when it found the Respondent unfairly dismissed the Claimant, holding him 55% to blame. . .
Cited – Community Integrated Care Ltd v Smith EAT 23-Sep-2008
EAT UNFAIR DISMISSAL
Majority of the Tribunal found that the procedures were unfair. The investigation was inadequate and accordingly the conclusion that the employee had committed misconduct was not based . .
Cited – Lawlor v Lex Plc (T/A RAC Motoring Services) EAT 6-Apr-2004
. .
Cited – The Fire Brigades Union v Croucher EAT 2-Jun-2004
EAT Unfair Dismissal – Reasonableness of dismissal – Failure of Employment Tribunal to apply Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.
EAT Unfair Dismissal – . .
Cited – Went v The Governing Body of Sir Roger Manwood’s School EAT 18-Nov-2004
EAT Unfair Dismissal – Constructive dismissal
EAT Unfair Dismissal – Constructive dismissal. . .
Cited – Donald v AMP (UK) Services Ltd EAT 16-Dec-2004
EAT Unfair Dismissal – Exclusions including worker . .
Cited – Barlow v Clifford and Co (Sidcup) Ltd EAT 28-Sep-2005
EAT Unfair Dismissal – Reasonableness of dismissal. . .
Cited – Kennedy v Ashfield In2Focus Ltd NIIT 19-Mar-2008
. .
Cited – Harding v Hampshire County Council EAT 10-May-2005
EAT Unfair dismissal
Appellant dismissed after internal disciplinary enquiry into allegations of sexual misconduct. The only issue before Employment Tribunal was the reasonableness of the employer’s . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .

Lists of cited by and citing cases may be incomplete.

Employment, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.203181

Mehey 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 failed. ‘ The architects of the new scheme in 2006 were creating a pool of barristers, lay representatives and others from which nominations could safely and properly be made for the purpose of disciplinary hearings and appeals. They were not placing an absolute ban on appointing persons from outside the pool as members of Disciplinary Tribunals or as Visitors. To imply such a ban would be contrary to the express provisions of the documents. It would also be surprising if there were such a prohibition, because some barristers do very specialist work; on occasions it may be appropriate to appoint a barrister or lay representative with particular expertise which is not available within the COIC pool. Furthermore there was no need for a complete ban. The court or the Visitors would step in to protect a defendant barrister, if an ineligible person were appointed to sit. This is precisely what happened in P. ‘

Jackson, Ryder, Sharp LJJ
[2014] EWCA Civ 1630
Bailii
Legal Services Act 2007 20
England and Wales
Citing:
Cited – In re S (A Barrister) 1970
(Inns of Court) The regulation of barristers has been delegated by the judges to the Inns of Court. Five judges sitting as Visitors of the Inns of Court stated that ‘the judges as visitors have always had supervisory powers and their decision, upon . .
Cited – P v The General Council of the Bar; Re P (A Barrister) 24-Jan-2005
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to . .
Cited – 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 . .
Appeal from – Leathley and Others, Regina (on The Application of) v Visitors To The Inns of Court and Another Admn 16-Oct-2013
Barristers sought permission to challenge, by way of judicial review, findings in relation to professional misconduct, and: ‘The most significant issues relate to the constitutions of the Disciplinary Tribunals convened to hear the charges against . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Natural Justice

Updated: 01 November 2021; Ref: scu.539986

Coke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales: SC 19 Jan 2011

The appellant chartered accountant had been convicted in Jersey after removing documents from his offices relating to a disputed trust and in breach of an order from his professional institute. The court now considered the relevance and application of the principles of autrefois acquit, res judicata and abuse of process after the Institute began a first and now a second set of disciplinary proceedings, the appellant saying that the issues arose from the same matters. The Institute said that the two complaints were under different regulations. The first complaint had failed through their error.
Held: The institiute’s appeal failed. The first decision of the disciplinary panel was both final and as to the merits, the conviction having no indictable parallel within England and Wales. The principles of res judicata and autrefois convict do apply to professional disciplinary proceedings. All the constituent elements of cause of action estoppel were established on the facts. Whether a public interest exception could be created to established law was properly for Parliament and not the courts.

Lord Phillips, President, Lord Rodger, Lord Collins, Lord Clarke, Lord Dyson
[2011] UKSC 2, UKSC 2009/0175, [2011] ICR 224, [2011] 2 All ER 1, [2011] 2 AC 146, [2011] 2 WLR 103
Bailii, Bailii Summary, SC Summary, SC
England and Wales
Citing:
Cited – Thoday v Thoday CA 1964
The court discussed the difference between issue estoppel, and action estoppel: ‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first . .
Cited – Andreou v Institute of Chartered Accountants In England and Wales CA 25-Jul-1997
The appeallant having been found guilty in professional disciplinary proceedings sought to appeal, but was refused by the defendant saying that it had no discretion to extend the time for an appeal.
Held: The Institute exercised its . .
Cited – Connelly v Director of Public Prosecutions HL 1964
Plea of Autrefois Acquit is Narrow in Scope
The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
Held: The majority identified a narrow . .
Cited – Thrasyvoulou v Secretary of State for the Environment HL 1990
A building owner appealed against enforcement notices which alleged that there had been a material change of use of his buildings in 1982. This notice was issued by a planning authority. As a result of the appeal an inspector determined that the . .
Cited – Meyers v Casey 13-Oct-1913
(High Court of Australia) The Court considered a decision of the committee of the Victoria Racing Club. Isaac J said of objections considered by the committee: ‘They are, by reason of the committee’s decision, res judicatae, as much as if instead of . .
Cited – Harry Lee Wee v The Law Society of Singapore PC 3-Dec-1984
(Singapore) The principles of autrefois acquit applied to professional disciplinary proceedings. Lord Bridge said: ‘No one would dispute that the doctrine of autrefois convict and acquit is applicable to disciplinary proceedings under a statutory . .
Cited – Trade Indemnity Co Ltd v Workington Harbour and Dock Board (No 2) HL 1938
The plaintiffs’ action was derived from a bond given by the defendants guaranteeing a contractor’s performance in building a dock for the plaintiffs. The bond provided that a certificate which complied with certain criteria would prove the amount . .
Cited – Arnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
Cited – Dunn v Murray 8-Jul-1829
Declaration stated, that in consideration that the plaintiff, at the request of the defendant, would enter into the employ of the defendant in a certain capacity for a year, at the rate of five guineas per week throughout the year, defendant . .
Cited – Bolton v The Law Society CA 8-Dec-1993
The solicitor who had been admitted to the Roll for two years had disbursed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The Tribunal found that . .
Cited – Fidelitas Shipping Co Ltd v V/O Exportchleb CA 1965
Where there is an award that is on its face an interim award, then the arbitrator is only functus officio with respect to the issues dealt with in that interim award and retains the authority to deal with the remaining matters. Issue estoppel . .
Cited – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
Cited – Dunn v Murray 8-Jul-1829
Declaration stated, that in consideration that the plaintiff, at the request of the defendant, would enter into the employ of the defendant in a certain capacity for a year, at the rate of five guineas per week throughout the year, defendant . .

Cited by:
Cited – Christou and Another v London Borough of Haringey EAT 21-Feb-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellants, the social worker responsible for the care of Baby P and her team manager, were held not to have been unfairly dismissed by Haringey for . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Estoppel

Leading Case

Updated: 01 November 2021; Ref: scu.428045

In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association: CA 21 Dec 2000

The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material circumstances in a case might give rise to a reasonable apprehension of bias, the test was whether objectively that appearance might be reasonable. It was not a subjective test of whether the lesser tribunal was actually biased. There is little substance to the distinction between a ‘real danger’, and a ‘real possibility’ of bias. Circumstances beyond those apparent to the parties might be taken into account. The judge’s own account of those circumstances can be taken into account. In this case a possible connection with a party meant that the judge should have recused herself. The court summarised the principles to be derived from this line of cases as follows: ‘(1) If a Judge is shown to have been influenced by actual bias, his decision must be set aside. (2) Where actual bias has not been established the personal impartiality of the Judge is to be presumed. (3) The Court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the Judge might not have been impartial. If they do the decision of the Judge must be set aside. (4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the Court. (5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice.’

LJ Brooke, Lord Phillips MR, Robert Walker LJ
Times 02-Feb-2001, [2001] ICR 564, [2001] 1 WLR 700, [2000] EWCA Civ 350, [2000] All ER (D) 2425
Bailii
European Convention on Human Rights 6
England and Wales
Citing:
Appeal from – In Re Medicaments and Related Classes of Goods (No 2) RPC 17-Nov-2000
Part way into a trial, one of the judges in a case applied for a position with a company. She discovered that a director of that company was due to give evidence. She brought the circumstances to the attention of the remaining court and parties. She . .
Cited – Locabail (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 . .
Cited – Regina 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 . .
Cited – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Cited – Regina v Rand 1866
r_rand1866
A judge with an interest in a case, or is a party to it, will be debarred from hearing it.
Blackburn J said: ‘There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Regina v Camborne Justices ex parte Pearce QBD 1954
The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor . .
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
Cited – Webb and Hay v The Queen 30-Jun-1994
(Australia) Criminal Law – Jury – Impartiality – Murder trial – Juror giving flowers to victim’s mother – Whether juror or jury to be discharged Appropriate test – Reasonable apprehension of lack of impartiality or real danger of lack of . .
Cited – Delcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
Cited – Regina v Inner West London Coroner Ex Parte Dallaglio, and Ex Parte Lockwood Croft CA 16-Jun-1994
A coroner’s comment that the deceased’s relative was ‘unhinged’ displayed a bias which was irreparable. ‘The description ‘apparent bias’ traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is . .
Cited – De Cubber v Belgium ECHR 26-Oct-1984
The applicant a Belgian, had been convicted of forgery. He said that the court had not been an impartial tribunal because one of the judges had also acted as an investigating judge in his case. Amongst the grounds on which it was contended that . .
Cited – Piersack v Belgium ECHR 1-Oct-1982
Hudoc applicant convicted of murder complained that his right to a fair trial under Article 6(1) had been denied because the trial court had been presided over by a Judge who, when senior deputy procureur, had . .
Cited – Borgers v Belgium ECHR 30-Oct-1991
Hudoc The Court reconsidered the nature of the involvement of the Procureur general’s department in decisions taken by the Belgian Cour de Cassation. The Court sitting in plenary session reached, by a majority, a . .
Cited – Hauschildt v Denmark ECHR 24-May-1989
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
Cited – Gregory v The United Kingdom ECHR 25-Feb-1997
gregory_ukECHR1997
A judge’s direction to the jury to disregard any question of racial bias was sufficient to ensure a fair trial for the defendant. In discussing the protection of the secrecy of jury deliberations: ‘The court acknowledges that the rule governing the . .
See Also – In Re Medicaments and Related Classes of Goods RPC 14-Apr-1999
Before granting leave to review the exemption of a class of goods from the resale price maintenance prohibition, there must be established prima facie evidence of a material change in circumstances, which might have led the earlier court to a . .

Cited by:
Cited – Regina v Williams; Regina v Saunby; Regina v Ashby; Regina v Schofield; Regina v Marsh, Regina v Webb; Regina v Leese; Regina v Dodds; Regina v Clarkson; Regina v English CMAC 30-Jul-2001
The appellants variously claimed their convictions should be set aside because the court which had heard their cases was not independent and impartial. They alleged in particular that questions of military discipline and morale would affect the . .
Cited – Porter 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 – Skjevesland v Geveran Trading Co Ltd CA 30-Oct-2002
The debtor’s wife was personally acquainted with counsel for the petitioner in his bankruptcy examination. He sought that it be set aside.
Held: Whereas a judge had a duty to be independent of the parties, no such duty fell on counsel. A court . .
Cited – Wilkinson v S and Lord Chancellor’s Department CA 4-Feb-2003
The appellant challenged his imprisonment for contempt of court. At and after a family court hearing he had verbally and physically assaulted other parties. He had been detained overnight, then sentenced to six months imprisonment.
Held: Where . .
Cited – Regina 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 . .
Cited – Meerabux 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 . .
Cited – Flaherty 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 . .
Applied – Discain Project Services Ltd v Opecrime Development Ltd TCC 11-Apr-2001
. .
Cited – Gillies 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 . .
Cited – Morrison 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 . .
Cited – Regina 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 . .
Cited – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
Cited – Porter 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 . .
See also – In 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 . .
Cited – McKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
Cited – Kaur, 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 . .
Cited – Hewitt, Regina (on The Application of) v Denbighshire Magistrates’ Court Admn 22-Oct-2015
The claimant, a hunt protester appealed against her conviction for harassment saying that the judge had given the appearance of being biased. He had, on being asked denied being a member of the hunting community. She said that he had whilst in . .
Cited – Ameyaw 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, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.82055

Findlay v United Kingdom: ECHR 25 Feb 1997

‘in order to establish whether a tribunal can be considered as ‘independent’, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence . . As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect . . The concepts of independence and objective impartiality are closely linked’

Ryssdal P
[1997] ECHR 8, (1997) 24 EHRR 221, 22107/93
Bailii
European Convention on Human Rights 6(1)
Human Rights
Cited by:
Cited – Misick 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.

Human Rights, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.451308

Ameyaw 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 one of the parties is represented by a barrister who was once the fee-paid judge’s pupil supervisor or where the fee-paid judge and the barrister representing one of the parties were members of the same chambers, and the barrister was the more senior. It is all the more untenable to suggest there is an appearance of bias in this case where (a) I am a full-time Judge, (b) I am no longer a member of the chambers of which Mr P is a member; and (c) I am more senior than Mr P and I was his pupil supervisor, not vice versa.’

Steyn DBE J
[2020] EWHC 1787 (QB)
Bailii
England and Wales
Citing:
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Porter 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 – 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 . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – Locabail (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 . .
Cited – Taylor 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 . .
Cited – 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. . .
Cited – Siddiqui v University of Oxford QBD 2016
Kerr J refused an application for him to recuse himself based inter alia on the fact that counsel for the Defendant before him was a member of his former chambers: ‘It is true that I was a member of the same chambers of Mr Milford until June 2015. . .
Cited – Watts v Watts CA 21-Dec-2015
The barrister for one of the parties was junior Counsel to the fee-paid judge in another case, which they had been working on together for the past year. The opponent appealed a refusal of the judge to recuse herself.
Held: The appeal . .

Cited by:
See Also – Ameyaw v McGoldrick and Others QBD 9-Jul-2020
Application for oral hearing of certain issues. . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Litigation Practice

Updated: 01 November 2021; Ref: scu.652406

Regina v Rand: 1866

r_rand1866

A judge with an interest in a case, or is a party to it, will be debarred from hearing it.
Blackburn J said: ‘There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter . . ‘
To disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding, a real likelihood of bias must be shown.

Blackburn J
(1866) LR 1 QB 230
Cited by:
Cited – Locabail (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 . .
Approved – Regina v Camborne Justices ex parte Pearce QBD 1954
The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .

Lists of cited by and citing cases may be incomplete.

Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.183300

Lawrence 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 the fixed penalty notice procedure had been properly validated. The notice did not require a finding of guilt, but only that the defendant was a person ‘who it has reason to believe has committed an offence’ to which the section relates.
Therefore: ‘whatever the precise form of the notice, there was no question of the determination of the issue whether the appellant was guilty of an offence before the notice was given. There was no issue upon which the appellant was entitled to be heard or to make representations before the notice was given. It follows that there was no breach of natural justice or of the principle that a defendant to criminal or civil proceedings is entitled to a fair hearing. If the defendant wanted to be heard on the question whether he was guilty of the offence alleged, the appropriate course was for him to wait to be prosecuted and to present his defence. He was not deprived of that opportunity by the giving of the notice.’ and ‘the Board sees nothing unlawful in the decision to give the notice or in the giving of the notice. He had no right to be heard before the notice was given.’

Lord Saville, Lord Collins, Lord Kerr, Lord Clarke, Sir Henry Brooke
[2009] UKPC 49
Bailii
Citing:
Cited – McCutcheon v David MacBrayne Ltd HL 21-Jan-1964
The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he . .
Cited – 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.
Cited – Yew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
Cited – 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. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Financial Services, Natural Justice

Updated: 01 November 2021; Ref: scu.384072

Calvin 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 experience in reaching their decision. The appeal process was an essentially domestic proceeding ‘in which experience and opinion as to what is in the interest of racing as a whole play a large part, and in which the standards are those which have come to be accepted over the history of this sporting activity.’
Following the Leary case: ‘In their Lordships’ judgment, such intermediate cases exist. In them, it is for the court . . to decide whether at the end of the day, there has been a fair result reached by fair methods . . Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect appeals or rehearings will not be sufficient to produce a just result . . There may also be cases when the appeal process itself is less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a full and fair enquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision.’
and ‘What is important is the recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation.’
Lord Wilberforce said: ‘those who have joined in an organisation or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect’. The Board considered whether there was a general rule that internal appellate proceedings could cure a defect caused by a failure of natural justice in the original proceedings: ‘. . . their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at the original hearing, whether administrative or quasi-judicial, can be ‘cured’ through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so.’
and ‘This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships opinion would be, if it became necessary to fix on one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal.’

Wilberforce, Dilhorne, Hailsham of St Marylebone, Keith of Kinkel LL
[1979] UKPC 1, [1979] 2 All ER 440, [1980] AC 574, [1979] 2 WLR 755
Bailii, Bailii
Australia
Citing:
Applied but limited – Leary 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.’ . .

Cited by:
Cited – Regina (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 . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Flaherty 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 . .
Cited – Whitbread and Co plc v Mills EAT 1988
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – McKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
Cited – 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.
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .

Lists of cited by and citing cases may be incomplete.

Administrative, Employment, Commonwealth, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.245736

Locabail (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 fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party of witness to be unreliable, would not without more found a sustainable objection’ and ‘it would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation on the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extracurricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate in a case before him; or membership of the same Inn, circuit, local Law Society or chambers’.

Lord Bingham CJ, Lord Woolf MR, Sir William Blackburne VC
[2000] 1 QB 451, [2000] IRLR 96, [2000] 1 All ER 64, [1999] EWCA Civ 3004, [2000] HRLR 290, [2000] 2 WLR 870, 7 BHRC 583, [2000] UKHRR 300
Bailii
European Convention on Human Rights,
England and Wales
Citing:
Cited – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Doubted – Regina 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 . .
Cited – Regina v Rand 1866
r_rand1866
A judge with an interest in a case, or is a party to it, will be debarred from hearing it.
Blackburn J said: ‘There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting . .
Cited – Regina v Camborne Justices ex parte Pearce QBD 1954
The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor . .
See Also – Locabail (UK) Ltd v Bayfield Properties Ltd and Others (No 3) ChD 29-Feb-2000
It can be proper to award costs against a third party to an action where his behaviour had fallen short of strictly maintaining the action. Here a husband had funded his wife’s defence knowing that she would be unable to support any order for costs . .
Appeal from – Locabail (UK) Ltd v Bayfield Properties Ltd and Another; Locabail (UK) Ltd and Another v Waldorf Investment Corporation and others (No 2) ChD 18-May-1999
A solicitor sitting as a judge was not obliged to disqualify himself even though his firm might not have been able to act for one of the parties to the case, unless a reasonable third party might properly think that he could not be impartial. . .
Cited – Regina v Inner West London Coroner Ex Parte Dallaglio, and Ex Parte Lockwood Croft CA 16-Jun-1994
A coroner’s comment that the deceased’s relative was ‘unhinged’ displayed a bias which was irreparable. ‘The description ‘apparent bias’ traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Clenae Pty Ltd and Others v Australia and New Zealand Banking Group Ltd 9-Apr-1999
(Supreme Court of Victoria) The court considered the issue of bias in a judge where he held shares in a company in the trial before him.
Held: The outcome of the litigation could not have realistically affected his judgment. He held a small . .
Cited – Powell v Chief Constable of North Wales Constabulary CA 20-Aug-1999
Application for permission to appeal by the defendant. The defendant had asserted a public interest immunity in refusing to disclose evidence of a witness since it would lead to the revelation of the identity of an informer.
Held: Leave was . .
Cited – Law v Chartered Institute of Patent Agents 1919
Eve J discussed the test for bias in the members of a council making a decision: ‘If he has a bias which renders him otherwise than an impartial judge he is disqualified from performing his duty. Nay, more (so jealous is the policy of our law of the . .
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
Cited – Vakauta v Kelly 1989
(High Court of Australia) The majority held that the first instance judge fell on the wrong side of ‘an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could . .

Cited by:
Cited – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Cited – Davidson 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 . .
Cited – 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 . .
Cited – Birminham City Council and Another v Yardley CA 9-Dec-2004
The litigant was informed before the case that the judge was from the same chambers as counsel for the opposing side.
Held: Such a litigant if he wanted to complain of bias must do so immediately. The judgment had been delivered only in draft . .
Cited – Al-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 . .
See Also – Locabail (UK) Ltd v Bayfield Properties Ltd and Others (No 3) ChD 29-Feb-2000
It can be proper to award costs against a third party to an action where his behaviour had fallen short of strictly maintaining the action. Here a husband had funded his wife’s defence knowing that she would be unable to support any order for costs . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Flaherty 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 . .
Cited – AWG Group Ltd and Another v Morrison and Another ChD 1-Dec-2005
Application was made for the judge to recuse himself from a forthcoming trial when he indicated that an intended witness was known to him personally.
Held: The test to be applied was to include: ‘all circumstances which have a bearing on the . .
Cited – Morrison 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 . .
Cited – Port 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. . .
Cited – London Borough of Southwark v Dennett CA 7-Nov-2007
The defendant tenant had been delayed for over five years by the claimant in buying his council house. He stopped paying rent in protest, and the council brought possession proceedings. He then paid his rent and continued in his counterclaim to . .
Cited – Armchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – Roberts, Regina (on the Application of) v The Parole Board Admn 7-Nov-2008
The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of . .
Cited – Garrett v Halton Borough Council CA 16-Mar-2007
The defendants argued that the conditional fee agreement in use by the claimant’s solicitors was void and so in breach of the rules.
Held: In assessing whether there was any ‘interest’ for the purposes of the Regulation, the court looked to . .
Cited – Tankard v John Fredricks Plastics Ltd; Jones v Attrill etc CA 11-Dec-2008
The defendants sought to argue that the conditional fee arrangement used by the claimant’s solicitors had been void under the 2000 regulations. They claimed that the solicitors had failed to disclose an interest in the policies sold.
Held: No . .
Cited – Vanttinen-Newton v The GEO Group UK Ltd EAT 23-Jul-2009
EAT UNFAIR DISMISSAL
The Claimant was head chaplain at an immigration removal centre. He was dismissed for giving an unauthorised interview broadcast on a local radio religious broadcast and because ‘there . .
Cited – Regina 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 . .
Cited – Mireskandari v Associated Newspapers Ltd QBD 4-May-2010
The claimant sued in defamation, but had failed to make disclosure of documents as ordered. He asked for the ‘unless’ order to be set aside, and the action re-instated saying that he had not had notice of the application for it. He also argued that . .
Cited – MMI Research Ltd v Cellxion Ltd and Others ChD 24-Sep-2007
The claimant had accidentally disclosed a confidential document it should not have done. The defendant argued that there had been a waiver of privilege.
Held: Applying Al Fayed, it could not in these circumstances be said that the mistake was . .
Cited – Oshungbure and Another, Regina v CACD 10-Mar-2005
The defendant appealed against a confiscation order, saying that the judge having previously expressed strong contrary views of the defendant, should have recused himself from the application, because of the appearance of bias. The judge had . .
Cited – Oni v NHS Leicester City EAT 12-Sep-2012
Oni_LeicesterEAT2012
EAT PRACTICE AND PROCEDURE – Costs
The Employment Tribunal should have recused itself from hearing an application for costs, given opinions which it expressed when giving reasons for deciding the case . .
Cited – O’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 . .
Cited – Otkritie 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 . .
Cited – Roberts and Others v Regina CACD 6-Dec-2018
Sentencing of Political Protesters
The defendants appealed against sentences for causing a public nuisance. They had been protesting against fracking by climbing aboard a lorry and blocking a main road for several days.
Held: The appeals from immediate custodial sentences were . .
Cited – Hayden v Associated Newspapers Ltd QBD 11-Mar-2020
The claimant alleged defamation by the defendant, and the court now considered the meanings of the words complained of. Another person had been held by police for seven hours after identifying the claimant as a transgendered man.
Held: The . .
Cited – Ameyaw 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 . .
Cited – The Conservative and Unionist Party v The Election Commissioner CA 23-Nov-2010
A losing candidate at a local election alleged corrupt and illegal practices relating to the entry of non-existent people on the electoral roll and using postal votes. The Election Commissioner found this proved and the election void, and awarded . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Natural Justice, Legal Professions

Leading Case

Updated: 01 November 2021; Ref: scu.136005

Inplayer Ltd and Another v Thorogood: CA 25 Nov 2014

Appeal against a decision that the first defendant in a chancery action was guilty of two contempts of court by reason of untruthful statements in his affidavit. He complained of procedural irregularities affecting the fairness.
Held: ‘the judge’s decision cannot stand for three reasons:
i) Mr Thorogood was not informed at any time before judgment of the two alleged contempts which the judge found proved.
ii) Mr Thorogood was not informed of his right not to give evidence. Being unrepresented he would not know of that right. The litigation was so managed that Mr Thorogood had no choice but to give evidence.
iii) Mr Thorogood was not informed of his entitlement to legal aid. As a result he was unrepresented when facing the equivalent of a criminal charge.’
Jackson LJ said: ‘A committal application has the character of criminal proceedings. The alleged contemnor is therefore entitled to legal aid, so that he can be properly represented: see Kings Lynn v West Norfolk Council v Bunning (Legal Aid Agency, interested party) [2013] EWHC 3390 (QB); [2014] 2 All ER 1095
Unfortunately no-one told Mr Thorogood of his right to legal aid during the first instance proceedings. Mr Thorogood subsequently learnt of his entitlement, with the result that he now has legal aid and is represented in this court.
Mr Milford accepts that the hearing below proceeded without anyone telling Mr Thorogood of his right to legal aid in relation to the contempt application. Mr Milford also accepts that Mr Thorogood should have been told of his entitlement and then given an opportunity to instruct lawyers of his choice. Therefore there has been a breach of common law principles of fairness and ECHR article 6.3 (c) .
50 I therefore uphold the third ground of appeal.’

Jackson, Lewison, Treacy LJJ
[2014] EWCA Civ 1511
Bailii
England and Wales
Citing:
Cited – Comet Products UK Ltd v Hawkex Plastics CA 1971
The court was asked whether a defendant should be cross-examined on an affidavit sworn by him on an application by the plaintiff to commit him for contempt.
Held: The cross-examination was likely to cover issues in the action and on that basis . .
Cited – Hammerton v Hammerton CA 23-Mar-2007
The husband appealed against his committal for contempt of a court order in family proceedings. The court had heard the wife’s application for his committal at the same time as his application for contact with the children.
Held: The appeal . .
Cited – King’s Lynn and West Norfolk Council v Bunning QBD 7-Nov-2013
Application for order finding the defendant and others to be in contempt of court in breaching an order as to the use of land for residential purposes.
Held: A committal application has the character of criminal proceedings. The alleged . .

Cited by:
Cited – Discovery Land Company Llc and Others v Jirehouse and Others ChD 7-Jun-2019
The first claimant had requested the committal of a defendant for his alleged failure to comply with undertakings he had given to the court. He now sought an adjournment saying that he had not been advised of the availability of legal aid, and . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Natural Justice

Updated: 01 November 2021; Ref: scu.539132

Wagner (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 advocate under the guise of questioning are improper and may also require judicial intervention.
(iii) Improper conduct on the part of an advocate, unchecked and unrestrained by judicial authority and hearing management, can potentially render a hearing unfair.

[2015] UKUT 655 (IAC)
Bailii
England and Wales
Citing:
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Immigration, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.565382

Annamunthodo v Oilfields Workers’ Trade Union: PC 26 Jul 1961

The plaintiff complained that he had been wrongly expelled by the general council of his union. The union replied that any defect had been cured when his expulsion was confirmed by the Union’s Annual Conference.
Held: The decision of the General Council of the Trade Union was vitiated because it convicted the appellant of an offence against the rules with which he had never been charged, and it was declared that the purported expulsion of the Appellant was invalid and should be set aside.
Lord Denning said: ‘If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts. It is a prejudice to any man to be denied justice. He will not, of course, be entitled to damages if he suffered none. But he can always ask for the decision against him to be set aside.’

Lord Denning, Lord Morris of Borth-y-Gest
[1961] AC 945, [1961] UKPC 41, [1961] 3 WLR 650, [1961] 3 All ER 621, [1961] AC 945
Bailii
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.

Employment, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.251038

Meerabux 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 decided in private.
Held: It was not suggested that the chairman had any pecuniary interest. A judge of the Supreme court had to be qualified as a barrister, and therefore be a member of the Bar Council in order to sit. Those framing the constitution must have anticipated this apparent conflict, and a chairman should therefore not be automatically disqualified. Not every proceeding must be held in public. The BAC was not a judicial body. The rules of the BAC were designed to ensure fairness, and they were not impugned by the proceedings, nor their privacy.

Lord Hoffmann, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Carswell
[2005] UKPC 12, Times 20-Apr-2005, [2005] 2 WLR 1307, [2005] 2 AC 513
Bailii, PC
Belize Constitution 98(4)
Commonwealth
Citing:
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Porter 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 – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Regina 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 . .
Cited – 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 . .
Cited – Leeson v Council of Medical Education and Registration 1889
Mere membership of an association by which proceedings are brought does not disqualify a judge from hearing the case, but active involvement in the institution of the particular proceedings does. Here, mere membership of the Medical Defence Union . .
Cited – Allinson v General Council of Medical Education and Registration 1894
The mere ex officio membership of the committee of the Medical Defence Union was held to be insufficient to disqualify the member from sitting on the disciplinary panel. . .
Cited – Pellegrin v France ECHR 8-Dec-1999
The court modified the approach taken in earlier decisions, that there are excluded from the scope of article 6(1) disputes raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Stewart v Secretary of State for Scotland (Scotland) HL 22-Jan-1998
The dismissal of a Scottish Sheriff ‘for inability’ is not limited in meaning to either mental or physical infirmity, but can also include simple incompetence. The fact that the inquiry into the sherriff’s unfitness was conducted in private was not . .
Cited – Stewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .

Cited by:
Cited – Gillies 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 . .
Cited – Regina 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 . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – Kaur, 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.

Legal Professions, Constitutional, Natural Justice

Updated: 01 November 2021; Ref: scu.223880

Re D (Minors) (Adoption Reports: Confidentiality): HL 1 Sep 1995

The House considered whether it was right for a tribunal to see and rely upon papers not disclosed to the parties. Lord Mustill said: ‘a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer.’ and ‘It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party.’

Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead
[1996] AC 593, [1995] UKHL 17, [1996] 1 FCR 205, [1995] 3 WLR 483, [1995] 4 All ER 385, [1995] 2 FLR 687, [1996] Fam Law 8
Bailii
England and Wales
Citing:
Appeal from – In Re D (Minors) (Adoption Reports: Confidentiality) CA 8-Dec-1994
A guardian ad litem’s promise of confidentiality to a child can broken by a court, and the guardian must be careful in making such promises. . .

Lists of cited by and citing cases may be incomplete.

Adoption, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.228360

Clarke, Regina (On the Application of) v Cardiff University: Admn 19 Aug 2009

The claimant complained of her treatment by the defendant’s law department in their assessment of her work. She had supported a complaint of race discrimination by another student against one of the people who marked her work. The court had ordered an independent marking, but the school wrote repeatedly to the independent marker, in breach of the order. The pass mark assessed was rejected by the school. The school arranged a further assessment, which came back with a pass mark which they accepted. Two academics who were the source of one complaint had also sat in judgment on it.
Held: It was unfair of them to do so, and to do so again on the appeal. The decisions were set aside.

Wyn Williams J
[2009] EWHC 2148 (Admin)
Bailii
England and Wales
Citing:
Cited – In the Matter of an Application for Judicial Review R v Liverpool John Moores University ex parte Hayes CA 18-May-1998
. .

Lists of cited by and citing cases may be incomplete.

Education, Natural Justice

Updated: 01 November 2021; Ref: scu.372864

Kanda 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 officer adjudicating his case.
Held: The failure amounted to a denial of a reasonable opportunity of being heard in answer to the charge and was unfair. Where a conflict was found between an existing law and a provision of the constitution, the Constitution had to prevail.
An essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet.
Lord Denning said: ‘In the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in causa sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and Fairness. But they are separate concepts and are governed by separate considerations. In the present case inspector Kanda complained of a breach of the second. He said that his constitutional right had been infringed. He had been dismissed without being given a reasonable opportunity of being heard.
If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence is given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them . . it follows, of course, that the Judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The Court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the Judge without his knowing.’ Lord Denning considered the conflict between the provisions under review and the Malaysian constitution: ‘If there was in any respect a conflict between the existing law and the Constitution . . then the existing law would have to be modified so as to accord with the Constitution.’ and ‘In a conflict of this kind between the existing law and the Constitution, the Constitution must prevail. The court must apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution.’

Lord Denning, Lord Hodson, Lord Devlin
[1962] AC 322, [1962] UKPC 2, [1962] 2 WLR 1153, [1962] UKPC 10
Bailii, Bailii
England and Wales
Cited by:
Cited – 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
. .
Cited – Ramda, Regina (on the Application of) v Secretary of State for the Home Department Admn 27-Jun-2002
The Government of France sought the extradition of Ramda wanted by them for trial in connection with a series of terrorist bombings in France. The applicant resisted extradition to France on the ground that the evidence which would be relied on . .
Cited – P Varghai v Caffyns Plc EAT 19-Dec-2003
EAT Race Discrimination – Inferring discrimination . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
Cited – Regina 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’, . .
Cited – 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, . .
Cited – Director of Public Prosecutions of Jamaica v Mollison (No 2) PC 22-Jan-2003
(Jamaica ) The appellant had been convicted of murder as a youth. He was sentenced to be detained during Her Majesty’s pleasure. The actual length of time to be served was decided by the Governor-General. The decision by the Governor was clearly a . .
Cited – Balkissoon Roodal v The State PC 20-Nov-2003
(Trinidad and Tobago) The appellant challenged the automatic death sentence imposed upon him for murder.
Held: There were conflicting constitutional provisions. Following Fisher, in the context of issues of capital sentences a wider view was . .
Cited – Secretary 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 – Al 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 . .
Cited – Al 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 . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Natural Justice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.251508

Porter 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 unlawful and leave the authority unable to meet its statutory duties. They complained that the auditor was biased.
Held: They had used powers given to them for the sale of council houses for unlawful purposes, and had known this was unlawful. Accordingly they were properly made liable to make good the financial losses suffered by the council. It was misconduct in a councillor to exercise or be party to the exercise of such powers otherwise than for the public purpose for which they were conferred.
The defendants said that the auditor who had conducted the investigation and prosecution was to be seen as biased, as to which Lord Hope of Craighead said: ‘It was suggested that the auditor’s mode of appointment gave rise to bias. The test of this is whether the circumstances were such that a fair-minded and informed observer might think there was a real possibility that the tribunal was biased. That did not apply here. As to the issue of delay, time for this purpose should run from the institution of proceedings until its final disposal.’
Lord Hope approved a statement that a court assessing whether there had been bias, should take all relevant circumstances into account: ‘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.’

Lord Bingham of Cornhill, Lord Steyn, Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Scott of Foscote
Times 13-Dec-2001, [2001] UKHL 67, [2002] 2 WLR 37, [2002] 2 AC 357, [2002] 1 All ER 465, [2001] NPC 184, [2002] HRLR 16, [2002] LGR 51
House of Lords, Bailii
Local Government Finance Act 1982 20
England and Wales
Citing:
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Appeal From – Weeks 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. . .
Modified – Regina 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 . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .

Cited by:
Cited – Taylor 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 . .
Cited – Mason, Wood, McClelland, Tierney v Regina CACD 13-Feb-2002
The appellants appealed their convictions on two grounds. First the judge who had heard the case was an acquaintance of the chief constable of the investigating force, and second evidence had been admitted of tape recordings of non-privileged . .
Cited – 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 . .
Cited – 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 . .
Cited – AA 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 . .
Cited – Regina v Smith (Lance Percival) CACD 19-Feb-2003
The defendant argued that the judge should have ensured that some members of the jury were black. He was a black man being tried by an all white jury, with a white victim and white witnesses.
Held: The judge had no part to play in the . .
Approved – 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 . .
Cited – Perch, Dennie and Commissiong v The Attorney General of Trinidad and Tobago PC 20-Feb-2003
PC (Trinidad and Tobago) The postal system had been transferred to a company. Employees complained that they had been public servants and had lost privileges associated with that employment, and provisions of the . .
Cited – Aaron v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have . .
Cited – PD, 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 . .
Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Cited – Cairnstores 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 . .
Cited – Singh 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 . .
Cited – Regina 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 . .
Cited – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Cited – Feld, 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 . .
Cited – Al-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 . .
Cited – Meerabux 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 . .
Cited – Scrivens 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 . .
Appeal From – Porter v United Kingdom ECHR 2003
A large surcharge imposed on the applicant was compensatory, not punitive. The criminal limb of article 6 was not engaged. . .
Cited – R, Regina (on the Application of) v Durham Constabulary and Another HL 17-Mar-2005
The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable . .
Cited – Flaherty 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 . .
Cited – Gillies 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 . .
Cited – Morrison 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 . .
Cited – Port 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. . .
Cited – National Assembly for Wales v Condron and Another CA 27-Nov-2006
The objector had successfully challenged a planning decision saying that a remark by the chairman of the planning committee demonstrated bias and an effective pre-determination of the decision. The committee supported by the developer appealed.
Cited – Paul and others v Deputy Coroner of the Queen’s Household and Another Admn 2-Mar-2007
The applicants sought judicial review of preliminary directions given for the intended inquest on the deaths of Diana Princess of Wales and of Dodi Al Fayed. It was submitted that the jurisdiction had been wrongly transferred to the Queen’s Coroner . .
Cited – Pintori, Regina v CACD 13-Jul-2007
The defendant appealed his conviction for possession of class A drugs, saying that the drugs found had belonged to somebody who had stayed at his flat whilst he had been away. One of the jurors later told a police officer that she had known through . .
Cited – Regina 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 . .
Cited – Armchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – 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 . .
Cited – Tuntum Housing Association v Aryeetey EAT 12-Oct-2007
EAT Time Limits – Reasonably practicability
Practice and Procedure – Bias, misconduct and procedural irregularity
Chairman’s mistake as to necessity for further claim following Claimant’s solicitors . .
Cited – Mitcham v The Queen PC 16-Mar-2009
(Saint Christopher and Nevis) The applicant appealed against his sentence of death following his conviction for murder. He had been granted a stay of execution pending the appeal to the board and had since been given leave to appeal against . .
Cited – Vanttinen-Newton v The GEO Group UK Ltd EAT 23-Jul-2009
EAT UNFAIR DISMISSAL
The Claimant was head chaplain at an immigration removal centre. He was dismissed for giving an unauthorised interview broadcast on a local radio religious broadcast and because ‘there . .
Cited – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
Cited – Regina 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 . .
Cited – McKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
Cited – Tibbetts v The Attorney General of The Cayman Islands PC 24-Mar-2010
(Cayman Islands) The defendant appealed against his conviction for money laundering, alleging apparent bias in a juror who was said to have been acquainted with one witness.
Held: The appeal failed. The juror had correctly replied to the . .
Cited – Ew v Director of Public Prosecutions and Others CA 11-Feb-2010
The claimant was subject to an order requiring him to obtain leave before commencing any civil proceedings. He commenced a private prosecution which the respondent later decided to take over and discontinue. He sought judicial review of that . .
Cited – Watson 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) . .
Cited – Kaur, 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 . .
Cited – Oni v NHS Leicester City EAT 12-Sep-2012
Oni_LeicesterEAT2012
EAT PRACTICE AND PROCEDURE – Costs
The Employment Tribunal should have recused itself from hearing an application for costs, given opinions which it expressed when giving reasons for deciding the case . .
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Cited – O’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 . .
Cited – Otkritie 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 . .
Cited – 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 . .
Cited – Hewitt, Regina (on The Application of) v Denbighshire Magistrates’ Court Admn 22-Oct-2015
The claimant, a hunt protester appealed against her conviction for harassment saying that the judge had given the appearance of being biased. He had, on being asked denied being a member of the hunting community. She said that he had whilst in . .
Cited – Singh v The Secretary of State for The Home Department CA 27-May-2016
The claimant said that the Judge in the first Tier Tribunal had made remarks before the hearing which suggested bias against the claimant.
Held: The appeal failed. There was in this case no adequate evidence of the tribunal having shown . .
Cited – London Borough of Southwark, Regina (on The Application of) v London Fire and Emergency Planning Authority and Another Admn 15-Jul-2016
There had been a substantial and lethal fire. The Borough challenged a decision by the defedant to retain to itself the prosecution of possible offenders, saying that the defendant might possibly be itself subject to criticism.
Held: The . .
Cited – Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz CA 16-Jun-2016
The appellant challenged an order made in favour of his wife in proceedings to enforce a contract between them. He alleged that there had been no contract, and bias in the judge. The appellant had not attended to allow cross examination because as a . .
Cited – Re West CACD 17-Jul-2014
W, a barrister, appealed against a conviction for contempt of court. He had declined to comply with the directions asked of him by the judge at a pre-trial hearing, saying that the client’s instructions that he was not guilty were sufficient. He was . .
Cited – Hayden v Associated Newspapers Ltd QBD 11-Mar-2020
The claimant alleged defamation by the defendant, and the court now considered the meanings of the words complained of. Another person had been held by police for seven hours after identifying the claimant as a transgendered man.
Held: The . .
Cited – Ameyaw 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.

Local Government, Human Rights, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.167009

Shoesmith, 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 claimed that the dismissal was unfair, not having been given opportunity to make representations either to those preparing the report or to him before his decision. The judge rejected both claims finding no full duty of fairness to the claimant.
Held: The claimant’s appeal in the cases against the Secretary of State and Haringey succeeded, but not that against OFSTED. The first two had made a public sacrifice of her, using her as a scapegoat.
OFSTED’s Review was prepared without the standard arrangement to allow feedback, and the report (as standard) criticised no individual directly, but was scathing of the authority. The Secretary of State made his announcement at a press conference, and incorrectly recorded the OFSTED report. Though requirements of procedural fairness vary with the context, the urgency did not justify the departure from such fairness, and ‘The fact that the 2004 Act, in creating the singular post of DCS, identified as a matter of policy one individual with ultimate responsibility and accountability in relation to children’s services does not mean that that person is to be denied the protections that have long been accorded to responsible and accountable office-holders.’
As to Haringey, the judge had been wrong to refer any claim to the employment tribunal. Her remedies at court may be different and preferable, and the case raised substantially the same issues. There may remain situations where a decision based upon another which later proves unlawful may not itself be vitiated, but this was not one. Haringey had been placed in a difficult position by the Secretary of State, but ‘There was no need for Haringey to move with such haste against a previously respected senior employee who was known to be in dire straits by reason of recent events. Someone else was already acting as DCS pursuant to the Secretary of State’s directions and Ms Shoesmith was under suspension. The appearance of a predetermined dismissal without notice or payment in lieu seems to me to be sufficient to make good the charge of unfairness. Although the summary element is of contractual significance, going to a potential claim for wrongful dismissal, it comes into the public law picture because it was part of the appearance of unfair predetermination.’

Lord Neuberger MR, Maurice Kay VP, Stanley Burnton LJJ
[2011] EWCA Civ 642, [2011] PTSR 1459, [2011] BLGR 649, [2011] IRLR 679, [2011] ICR 1195
Bailii
Children Act 2004 20(1)(b), Education Act 1996 497A(4B)
England and Wales
Citing:
See Also – Shoesmith, Regina (on The Application of) v OFSTED and Others Admn 10-Nov-2009
. .
Appeal from – Shoesmith, Regina (on The Application of) v Ofsted and Others Admn 23-Apr-2010
The claimant challenged her dismissal as Director of children’s services at the respondent council following an adverse report into the Baby P death identified her department as being responsible. She said that the first defendant had allowed its . .
Cited – Maxwell v Department of Trade and Industry CA 1974
The plaintiff complained that adverse findings had been made against him by inspectors acting under the companies acts. The inspectors conducted their inquiries in private and heard evidence from individuals. They then informed the persons in . .
Cited – Mahon v Air New Zealand Ltd PC 1984
There had been an inquiry into a tragic air crash. The appellants said that though identified by the Royal Commissioner (a High Court judge) as being parties to ‘an orchestrated litany of lies’, they had not been given a proper opportunity to answer . .
Cited – Malloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
Cited – Regina v Broxtowe Borough Council ex parte Bradford CA 2000
A tennis coach wanted employment with the borough council as a coach. It made inquiries of another council and found that he had been suspected of improper conduct towards young girls. It not only refused him a job but imposed a ban upon him . .
Cited – Regina v Chief Constable of the Thames Valley Police, Ex parte Cotton CA 1990
The Chief Constable’s power to dispense with a probationer’s services under Condition 7 is only exercisable in cases where the probationer constable’s unfitness does not arise from alleged misconduct, for example where it arises from the constable’s . .
Cited – Regina 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’, . .
Cited – 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 . .
Cited – James Bagg’s Case KBD 1572
Limitations on Disenfranchisement
The cause of disfranchising a citizen, freeman, or burgess, ought to be grounded upon an Act which is against the duty of a citizen or burgess, and against the public good of the city or borough whereof, and c. and against his oath, which he took . .
Cited – Regina v Secretary of State For The Home Department, Ex Parte Venables, Regina v Secretary of State For The Home Department, Ex Parte Thompson HL 12-Jun-1997
A sentence of detention during her majesty’s pleasure when imposed on a youth was not the same as a sentence of life imprisonment, and the Home Secretary was wrong to treat it on the same basis and to make allowance for expressions of public . .
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .
Cited – Vine v National Dock Labour Board HL 1957
The plaintiff was employed under a statutory scheme for the employment of dock labourers. He appealed against a finding that the rules on dismissal contained within the scheme were not the only ones appertaining.
Held: (reversing the majority . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
Cited – Regina v East Berkshire Health Authority, ex Parte Walsh CA 14-May-1984
A district nursing officer had been dismissed for misconduct. He applied for judicial review. He sought judicial review to quash the decision on the ground that there had been a breach of natural justice and that the district nursing officer had no . .
Cited – Regina v Essex County Council, ex parte EB 1997
It was wrong to require a plaintiff to begin a claim in the employment tribunal where the possible remedies in the County Court were greater or different. . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – McLaughlin v Cayman Islands PC 23-Jul-2007
(Cayman Islands) The plaintiff had been wrongfully dismissed from his post as a public officer. He appealed against a refusal to award him his pay.
Held: The dismissal from a public office being unlawful, it was void and ineffective to remove . .
Cited – Mossell (Jamaica) Ltd (T/A Digicel) v Office of Utilities Regulations and Others PC 21-Jan-2010
(Jamaica) Lord Phillips, after referring to the speech of Lord Irvine in Boddington, rejected the submission that the principle in Boddington applies only within criminal prosecutions, adding: ‘What it all comes to is this. Subordinate legislation, . .
Cited – Gibb v Maidstone and Tunbridge Wells NHS Trust CA 23-Jun-2010
Sedley LJ said: ‘It seems that the making of a public sacrifice to deflect press and public obloquy, which is what happened to the appellant, remains an accepted expedient of public administration in this country.’ . .
Cited – Chief Constable of the North Wales Police v Evans HL 1982
The Court found the probationer police constable to have been unlawfully induced to resign, but the court could not order his reinstatement. A power must be exercised by the precise person or body stated in the statute. Though courts may review the . .

Cited by:
Cited – Erlam and Others v Rahman and Another QBD 23-Apr-2015
The petitioners had alleged that the respondent, in his or his agent’s conduct of his campaign to be elected Mayor for Tower Hamlets in London in May 2014, had engaged in corrupt and illegal practices.
Held: The election was set aside for . .
Cited – Watch Tower Bible and Tract Society of Britain v Charity Commission Admn 12-Dec-2014
The respondent had instigated a statutory inquiry under the 2011 Act into the claimant’s child safeguarding practices, and policies after compaints made to it. The Society now sought judicial review of that decision, and to production orders made to . .

Lists of cited by and citing cases may be incomplete.

Administrative, Natural Justice, Employment

Updated: 01 November 2021; Ref: scu.440224

Country Trade Limited v Hanton and Others: UTLC 3 May 2012

UTLC LANDLORD AND TENANT- service charges – Landlord and Tenant Act 1985 – reasonableness of service charge – fair hearing – appearance of bias – appeal allowed

[2012] UKUT 67 (LC)
Bailii
England and Wales

Landlord and Tenant, Natural Justice

Updated: 01 November 2021; Ref: scu.460255

Dimes v Proprietors of Grand Junction Canal and others: HL 26 Jun 1852

The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the grounds that the Lord Chancellor was disqualified.
Held: After consultation, Lord Cottenham was disqualified from sitting as a judge in the cause because he had an interest in the suit. There was no inquiry by the court as to whether a reasonable man would consider Lord Cottenham to be biased and no inquiry as to the circumstances which led to Lord Cottenham sitting.
Lord Campbell said: ‘No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen’s Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.’

Lord Brougham, Lord Campbell
(1852) 3 HL Cas 759, [1852] EngR 789, (1852) 3 HLC 759, (1852) 10 ER 301
Commonlii
England and Wales
Citing:
See Also – Dimes v The Company of Proprietors of The Grand Junction Canal CExC 1846
By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
See Also – The Grand Junction Canal Company v Dimes 1-May-1849
In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
Appeal from – The Grand Junction Canal Company v Dimes CA 4-Feb-1850
The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
See Also – Dimes v Lord Cottenham 2-May-1850
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
See Also – In Re Dimes 26-Jul-1850
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .

Cited by:
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Locabail (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 . .
Cited – Al-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 . .
Cited – Meerabux 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 . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Principal Judgment – Dimes v The Proprietors Of The Grand Junction Canal and Others 29-Jun-1852
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .
Cited – Kaur, 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 . .
Cited – P v The General Council of the Bar; Re P (A Barrister) 24-Jan-2005
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.183299

London Borough of Southwark, Regina (on The Application of) v London Fire and Emergency Planning Authority and Another: Admn 15 Jul 2016

There had been a substantial and lethal fire. The Borough challenged a decision by the defedant to retain to itself the prosecution of possible offenders, saying that the defendant might possibly be itself subject to criticism.
Held: The objection failed. ‘Any prosecution would be grounded firmly in the state of affairs that Southwark had permitted to develop at Lakanal House prior to the fire. Thus, if an allegation of breach of the RRO is to be established, it will have to be based on the extent (if at all) to which Southwark failed to comply with its statutory duty which is free standing of any failures during the fire itself.’ The provision of a course at an earlier date was no promise which could afect this matter.

Sir Brian leveson P QBD, McGowan DBE J
[2016] EWHC 1701 (Admin)
Bailii
Regulatory Reform (Fire Safety) Order 2005, Health and Safety at Work Act 1974, Fire Rescue and Services Act 2004
England and Wales
Citing:
Cited – Porter 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 – Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz CA 16-Jun-2016
The appellant challenged an order made in favour of his wife in proceedings to enforce a contract between them. He alleged that there had been no contract, and bias in the judge. The appellant had not attended to allow cross examination because as a . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Natural Justice

Updated: 01 November 2021; Ref: scu.567206

McInnes 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 no obligation to provide reasons for the decision. The exercise of a power revoking a licence will attract the rules of natural justice, particularly when the revocation results in the loss of a right to earn a livelihood or to carry on a financially rewarding activity.
Megarry VC drew a distinction between ‘forfeiture cases’ where an existing benefit such as a licence is terminated or revoked, ‘application cases’ where the grant of some new right or privilege is sought, and an intermediate group of ‘expectation cases’ which differ from the application cases only in that applicant has some legitimate expectation from what has already occurred that his or her application, such as for a licence renewal, will be granted. He discussed the critical distinctions between forfeiture, application and expectation cases: ‘It seems plain that there is a substantial distinction between the forfeiture cases and the application cases. In the forfeiture cases, there is a threat to take something away for some reason: and in such cases, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges . . are plainly apt. In the application cases, on the other hand, nothing is being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity of being heard in answer to the charges. Instead, there is the far wider and less defined question of the suitability of the application for membership or a licence. The distinction is well-recognised, for in general it is clear that the courts will require natural justice to be observed for expulsion from a social club, but not on an application for admission to it. The intermediate category, that of the expectation cases, may at least in some respects be regarded as being more akin to the forfeiture cases than the application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or confirmation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for membership or licence for which he was previously thought suitable.’
‘I think that the courts must be slow to allow an implied obligation to be fair to be used as a means of bringing before the court for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts. This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities. The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens. Bodies such as the board which promote a public interest by seeking to maintain high standards in a field of activity which otherwise might easily become degraded and corrupt ought not to be hampered in their work without good cause.’

Sir Robert Megarry VC
[1978] 3 All ER 211, [1978] 1 WLR 1520
England and Wales
Cited by:
Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA 12-Jul-2005
The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .
Approved – 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. . .
Cited – Flaherty 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 . .
Cited – Naidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago PC 12-Oct-2004
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was . .
Approved – Cowley v Heatley ChD 24-Jul-1986
The court considered a challenge to the disciplinary procedures in the sport of swimming. Sir Nicolas Brown-Wilkinson VC said: ‘I am echoing the sentiments expressed by Sir Robert Megarry VC in McInness v Onslow-Fane [1978] 1 WLR 1520. At page 1535 . .
Cited – McKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
Cited – Bradley v Jockey Club QBD 2004
The former jockey sought an injunction to restrain the respondent enforcing a ban it had imposed on him from working as a jockey for five years. The defendant had previously been ruled authoritatively not to be amenable to judicial review in public . .
Cited – Chambers v British Olympic Association QBD 18-Jul-2008
The claimant, a former Olypmic sprinter had now competed a ban after being found to have taken banned drugs. He had returned to the sprort but now challenged the policy of the respondent not to allow for consideration of the Olympic team, athletes . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.188403

Regina 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 the other trials. The judge knew also of his previous record. The finding of jury tampering relied on material protected from disclosure by a PII certificate. The allegation arose after all the evidence had been heard.
Held: The defendant’s appeal succeeded. The situation did require the jury to be discharged. The essential requirement for fairness in judicial systems had been re-inforced recently in AF. The fact that protected information was used to make the decision was not of itself conclusive to suggest that the judge could not continue alone. The judge had in earlier trials of associated defendants made comments severely critical of this defendant, and there might be an appearance of bias against him now: ‘the absence of judicial bias does not answer the separate question whether an informed objective bystander might legitimately conclude that such bias is a realistic possibility.’

Lord Judge, Lord Chief Justice, Mr Justice Penry-Davey and Mr Justice Keith
[2009] EWCA Crim 2377, Times 25-Nov-2009
Bailii
Criminal Justice Act 2003 47, Juries Act 1974, European Convention on Human Rights 6
England and Wales
Citing:
Cited – T and Others Regina v CACD 5-Jun-2009
The court gave guidance to judges on how to apply the 2003 Act where jury tampering had been established. In general, ‘save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he . .
Cited – 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 . .
Cited – Regina 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 . .
Cited – Porter 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 – Locabail (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 . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Natural Justice

Updated: 01 November 2021; Ref: scu.381513

Local Government Board v Arlidge: HL 1914

A right of appeal against the exercise of a statutory authority requires no general right to an oral hearing before an administrative decision maker, and a hearing on the papers may be perfectly fair for legal purposes.
Lord Shaw said: ‘The words ‘natural justice’ occur in arguments and sometimes in judicial pronouncements in such cases. My Lords, when a central administrative board deals with an appeal from a local authority it must do its best to act justly, and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance it must still act honestly and by honest means. In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading. In so far as the term ‘natural justice’ means that a result or process should be just, it is a harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous.’

Lord Shaw
[1915] AC 120, [1914-15] All ER 1, 30 TLR 672
England and Wales
Cited by:
Cited – Regina v Army Board of Defence Council, ex parte Anderson QBD 1991
army_anderson1991
Members of the Armed Forces who alleged discrimination did not have access to Industrial Tribunals. The only recourse was to make a service complaint which would then be considered by the Army Board. Anderson complained of race discrimination. His . .

Lists of cited by and citing cases may be incomplete.

Administrative, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.539817

Rex v Sussex Justices, Ex parte McCarthy: KBD 9 Nov 1923

Clerk wrongly retired with Justices

There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The Clerk retired with the Justices, who returned to convict the Defendant. On learning of the Clerk’s provenance, the Defendant applied to have the conviction quashed. The Justices swore affidavits stating that they had reached their decision to convict the Defendant without consulting their Clerk.
Lord Hewart CJ said: ‘It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices’ affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction. In those circumstances I am satisfied that this conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the facts, and then, on a conviction being recorded, decided to take the point. On the facts I am satisfied that there has been no waiver of the irregularity, and, that being so, the rule must be made absolute and the conviction quashed.’
Lush J said: ‘It must be clearly understood that if justices allow their clerk to be present at their consultation when either he or his firm is professionally engaged in those proceedings or in other proceedings involving the same subject matter, it is irrelevant to inquire whether the clerk did or did not give advice and influence the justices. What is objectionable is his presence at the consultation, when he is in a position which necessarily makes it impossible for him to give absolutely impartial advice. I have no doubt that these justices did not intend to do anything irregular or wrong, but they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room. The result, there being no waiver, is that the conviction must be quashed.’

Lord Hewart CJ Lush, Sankey JJ
[1924] 1 KB 256, [1923] All ER Rep 233, [1923] EWHC KB 1
England and Wales
Cited by:
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Explained – Regina v Inner West London Coroner Ex Parte Dallaglio, and Ex Parte Lockwood Croft CA 16-Jun-1994
A coroner’s comment that the deceased’s relative was ‘unhinged’ displayed a bias which was irreparable. ‘The description ‘apparent bias’ traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is . .
Cited – Regina v Camborne Justices ex parte Pearce QBD 1954
The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Regina v Khan and Hanif CACD 14-Mar-2008
Each defendant appealed against his conviction saying that the presence on the jury of certain people involved in the law gave the appearance of bias.
Held: The court should be made aware if any potential juror either is or has been a police . .
Cited – Al 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 . .
Cited – Locabail (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 . .
Cited – Liaw v Lee (Recognition of Divorce) FD 3-Jun-2015
The applicant sought that the decrees nisi and absolute of divorce issued by the High Court of Malaya at Shah Alam in favour of the respondent husband be refused recognition in England and Wales.
Held: The application was granted: ‘the husband . .
Cited – Ameyaw 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.

Natural Justice, Magistrates

Leading Case

Updated: 31 October 2021; Ref: scu.183301

Bank 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 would not be allowed to see as to their suspected involvement in terrorism.
Held: The judge had been correct to find that the standards set down in AF applied. The Treasury’s open evidence was insufficient to constitute a case. The requirements of article 6(1) are such that the information to be provided by the Treasury must not merely be sufficient to enable the Bank to deny what is said against it. The Bank must be given sufficient information to enable it actually to refute, in so far as that is possible, the case made out against it, and if a party is dissatisfied with a decision as to what information should be disclosed in a case such as this, an appeal would, at least in principle, represent an uphill task. An appellate court would normally be reluctant to interfere with a first instance judge’s determination of what has to be disclosed to satisfy the requirements of article 6(1), although it would, of course, do so if satisfied that the judge had gone wrong in principle.

Lord Neuberger MR, Maurice Kay, Sullivan LJJ
[2010] EWCA Civ 483, [2010] WLR (D) 148
Bailii, Times, WLRD
Financial Restrictions (Iran) Order 2009, European Convention on Human Rights 3
England and Wales
Citing:
Cited – 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 . .
Cited – A and Others v The United Kingdom ECHR 19-Feb-2009
(Grand Chamber) The applicants had been subjected to severe restrictions. They were foreign nationals suspected of terrorist involvement, but could not be deported for fear of being tortured. The UK had derogated from the Convention to put the . .
Cited – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Cited – Al 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 . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Home Office v Tariq CA 4-May-2010
The claimant began proceedings against his employer, the Immigration Service after his security clearance was withdrawn. He complained that the respondent had been allowed by the Tribunal to present evidence he was not himself allowed to see and . .
Cited – Kadi v Council and Commission (Common Foreign and Security Policy) ECJ 16-Jan-2008
ECJ Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – United Nations Security Council . .
Cited – Roberts 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: . .

Cited by:
Cited – Al 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 . .
See Also – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Cited – Sher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Human Rights

Updated: 31 October 2021; Ref: scu.409221

Peninsula Business Services Ltd v Rees and Others: EAT 23 Jul 2009

peninsula_reesEAT2009

EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
The Appellants are a large organisation offering employment advice and representation before Employment Tribunals and the Employment Appeal Tribunal. The same Employment Judge heard the cases of Mr Rees and others and Miss Malik against Peninsula. Shortly before the resumed hearing of the case of Mr Rees and others, the five partner firm of solicitors in which the then part-time Employment Judge was an employment law specialist, advertised their employment law expertise and denigrated non-solicitor employment law consultants. Although not named, the Appellants are well-known and perhaps the largest such consultants. A fair-minded and informed observer could not have excluded the possibility of bias against Peninsula by the Employment Judge. (Porter v McGill [2002] 2 AC 357 and Locabail v Bayfield Properties Limited [2000] IRLR 96 applied). The judgment in the case of Mr Rees and others is set aside on grounds of apparent bias. The case is remitted for rehearing before a different Employment Tribunal.
In the case of Miss Malik, after recusal of a lay member, the Appellant’s representative consented to the case continuing with the Employment Judge and the remaining lay member. Although consent was reluctantly given it constituted proper waiver of the apparent bias (Locabail and Jones v Das Legal Expenses Insurance Co Ltd [2004] IRLR 218). The presence of the Employment Judge on the Tribunal in that case did not give rise to the appearance of bias on the grounds it did in Mr Rees’ case. The distance in time between the advertisement and the hearing of Miss Malik’s case and the fact that the by now full-time Employment Judge was no longer a partner in the solicitors’ firm removed any real risk of appearance of bias by the presence of the Employment Judge on the Tribunal in that case (Locabail, para 89). The bias ground of appeal in the case of Miss Malik is dismissed. The appeal will be relisted for determination of other grounds of appeal in that case.

[2009] UKEAT 0333 – 08 – 2307
Bailii

Employment, Natural Justice

Updated: 31 October 2021; Ref: scu.361511

Regina 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’, changes over time, and the requirements are flexible and closely conditioned by the legal and administrative context. As regards acting within a statutory scheme. The House rejected the argument that the existence of express statutory rights to a fair hearing in relation to some kinds of decisions affecting prisoners entailed the absence of any such right in relation to all other such decisions.

Lord Mustill said: ‘An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken’. Consultation and the right to make representations are basic aspects of procedural fairness in public law.
He set out six principles of fairness in public law decisions: (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.’ and
‘The respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made.’
Lord Reed said: ‘As Lord Mustill made clear, what fairness demands is dependent on the context; and an essential feature of the context is the statute under which the decision maker is acting . . The principle of audi alteram partem is . . written into the Act. We do not doubt that it is open to the commissioner to go beyond the procedural steps required by section 49, and in particular, as in the present case, to consider additional submissions by the applicant and to carry out his own investigations. Having regard however to section 49(3) in particular, we consider that if the commissioner proposes to consider additional submissions by the applicant . . he must give the authority notice of any relevant material adverse to their position and invite their comments. Compliance with such an obligation will not impose an ‘unreasonable’ burden on the commissioner, and is liable to improve the quality of his decisions as well as ensuring their fairness. ‘

Lord Mustill, Lord Keith of Kinkel, Lord Lane, Lord Templeman, Lord Browne-Wilkinson
Independent 25-Jun-1993, Times 29-Jun-1993, [1993] 3 All ER 92, [1994] 1 AC 531, [1993] UKHL 8, [1993] 3 WLR 154
Bailii
Criminal Justice Act 1967 61(1)
England and Wales
Citing:
Adopted – 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 . .
Cited – Kanda 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 . .
Cited – Carltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .
At CA dicta approved – Doody v Secretary of State for the Home Department CACD 1992
The Court considered the procedure for fixing the period for which prisoners sentenced to mandatory life imprisonment should serve for retribution and deterrence before their sentences could be reviewed. Held Staughton LJ considered the issue of . .

Cited by:
Cited – Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .
Cited – Checkpoint Ltd v Strathclyde Pension Fund CA 6-Feb-2003
The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity . .
Cited – Wright v Her Majesty’s Advocate HCJ 2-May-2003
The defendant appealed his sentence of life imprisonment for assault and attempted rape, with a minimum of twelve years to be served. The trial judge was right in deciding that, because of the risk that the appellant presented to women, a . .
Cited – Sporting Options Plc, Regina (on the Application Of) v Horserace Betting Levy Board Admn 31-Jul-2003
The claimant sought judicial review of the rate of levy set by the respondent, saying that they operated a new kind of system which was treated unfairly.
Held: The procedure followed in settling the levy was unsatisfactory. The claimant would . .
Cited – Lord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
Applied – Regina v Secretary of State Home Department, Ex Parte Duggan QBD 9-Dec-1993
A High Security prisoner is to know the gist of report and reasons for his categorisation: ‘on the first and subsequent annual reviews, fairness, in my view, requires that the gist of the reports be revealed in order to give the opportunity for . .
Applied – Regina v Secretary of State for Home Department ex parte McAvoy CA 3-Dec-1997
A prisoner had the right to know the gist (though not the full contents) of reports used in deciding on a review of his security status. (Lord Woolf MR) ‘For my part, I accept that it is desirable, when something has the impact which being placed in . .
Cited – Regina (X) v Chief Constable of West Midlands Police QBD 23-Jan-2004
The claimant, a social worker, had been accused of two offences of indecency with children, but the complainants had failed to identify him. The respondent later disclosed those allegations when called upon to provide an enhanced criminal record . .
Cited – Regina 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 . .
Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – Capenhurst and Others, Regina (on the Application Of) v Leicester City Council Admn 15-Sep-2004
The applicants, representatives of voluntary organisations, challenged decisions of the local authority to withdraw their funding, saying the decision making process had been unfair.
Held: Even if it was not bound to consult, if the authority . .
Cited – Feld, 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 . .
Cited – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
Cited – Regina 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: . .
Cited – Secretary 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 . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Hindley HL 30-Mar-2000
The prisoner, sentenced to life imprisonment with a whole life tariff for the murders of children, now appealed against the imposition of the whole life tarriff.
Held: The appeal failed. It was possible for a Home Secretary to set a whole life . .
Cited – Roberts 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: . .
Cited – Smith, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The applicant had, as a child been subject to detention during Her Majesty’s pleasure, the sentence being imposed before 30 November 2000. She argued that that sentence should be subject to periodic review despite the term had been fixed by the Lord . .
Cited – Dudson, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The defendant had committed a murder when aged 16, and after conviction sentenced to be detailed during Her Majesty’s Pleasure. His tarriff had been set at 18 years, reduced to 16 years after review.
Held: ‘What is at issue is the general . .
Cited – Regina 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 . .
Cited – Regina v Universities Funding Council ex parte Institute of Dental Surgery QBD 30-Jul-1993
When considering whether a disciplinary board should have given reasons, the court may find the absence critical ‘where the decision appears aberrant’. ‘the giving of reasons may among other things concentrate the decision-maker’s mind on the right . .
Cited – Hasan, Regina (on the Application of) v Secretary of State for Trade and Industry CA 25-Nov-2008
The claimant appealed refusal of leave to bring judicial review of decisions to sell arms to the Israeli state. He lived in Palestine and said that Israel had destroyed his farm, and that licences broke the criteria under the 2002 Act. He said that . .
Cited – Bamber, Regina v CACD 14-May-2009
The defendant had been convicted in 1986 of the murder of five members of his adoptive family. The judge had initially recommended a minimum term of 25 years. A later judge had suggested a whole life term. The convictions had been upheld in 2002. . .
Cited – Crest Nicholson Plc v Office of Fair Trading Admn 24-Jul-2009
The company challenged as unfair its treatment by the respondent in imposing fines for anti-competive behaviour. The claimant was successor of the company who had misbehaved, but the claimant no longer operated in the area and had no employees from . .
Cited – Regina 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 . .
Cited – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Cited – Shoesmith, 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 . .
Cited – Save 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. . .
Cited – Regina (Tucker) v Director General of the National Crime Squad CA 17-Jan-2003
The applicant was a senior officer seconded to the National Crime Squad. He complained that his secondment had been terminated in a manner which was unfair, and left him tainted without opportunity to reply. He appealed against rejection of his . .
Cited – Bank 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 . .
Cited – South Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .
Cited – Bourgass 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 . .
Cited – Adams, Regina v (Northern Ireland) SC 13-May-2020
Secretary of State alone to consider confinement
The appellant had been detained under an Interim Custody Order (ICO) during internment during the troubles in Ireland, and then convicted of attempting to escape and escaping. He now appealed from that conviction saying that the order under which he . .
Cited – Dover District Council v CPRE Kent SC 6-Dec-2017
‘When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Judicial Review, Prisons

Leading Case

Updated: 31 October 2021; Ref: scu.87844

Yuill v Yuill: CA 1944

Appellate Court’s Caution in Reassessing Facts

The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning a decision at first instance as to the facts.
Lord Greene MR said: ‘It can, of course, only be in the rarest of occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.’
and ‘A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge’s examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.’

Lord Greene MR, MacKinnon and Du Parcq LJJ
[1944] P 15, [1945] 1 All ER 183, 61 TLR 176
England and Wales
Cited by:
Approved – Thomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
Cited – Tutt and Others vTutt CA 14-Oct-1997
The parties disputed a boundary between their properties. It followed a prolonged and expensive dispute over what was a small piece of land.
Held: Acknowledging the caution required before overturning a judge’s decision on the facts, there . .
Cited – Cairnstores 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 . .
Cited – Akerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
Cited – London Borough of Southwark v Kofi-Adu CA 23-Mar-2006
The authority complained that during the course of the trial, the judge had repeatedly intervened during oral evidence.
Held: A judge must be careful not to repeatedly intervene during oral evidence as opposed to counsel making submissions. . .
Cited – Jones v National Coal Board CA 17-Apr-1957
The judicial function of dealing with cases justly in an adversarial system requires a first instance judge ‘to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.’ That . .
Cited – Re S (Children, W and T) CA 14-May-2014
The parents sought leave to appeal against a care order made on a finding of sexual abuse of one of the children, saying that the court had failed to allow for the inherent improbability of the facts alleged. . .
Approved – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Leading Case

Updated: 31 October 2021; Ref: scu.186351

Regina v Camborne Justices ex parte Pearce: QBD 1954

The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor member of the Council, but he did not serve on the Health Committee. An apparent bias was alleged against the Clerk. The Solicitor General, Sir Reginald Manningham-Buller, QC as amicus submitted that the correct test was whether or not there was a ‘real likelihood’ of bias, that is ‘something to which a person in possession of such facts as are readily available to him would take exception to’.
Held: The court found that the clerk had been asked to advise on the law only. As to the test of bias ‘a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.’ and ‘The frequency with which allegations of bias have come before the courts in recent times seems to indicate that Lord Hewart’s reminder in the Sussex Justices case that it ‘is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’ is being urged as a warrant for quashing convictions or invalidating orders upon quite unsubstantial grounds and, indeed, in some cases upon the flimsiest pretexts of bias. Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done.’ However: ‘There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter . .’
The court refused an application made on behalf of the justices for their costs to be paid by the solicitor who acted for the applicant. The 1872 Act gave the justices the right to file an affidavit in reply to the evidence of the applicant, and as there was no allegation of misconduct against the justices there was no need for them to have been represented by counsel. ‘It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as an automatic disqualification.’

Slade J, Goddard LJ
[1954] 2 All ER 850, [1955] 1 QB 41
Review of Justices’ Decisions Act 1872 3
England and Wales
Citing:
Approved – Regina v Rand 1866
r_rand1866
A judge with an interest in a case, or is a party to it, will be debarred from hearing it.
Blackburn J said: ‘There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting . .
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .

Cited by:
Cited – Regina on the Application of Davies (No 2) v HM Deputy Coroner for Birmingham CA 27-Feb-2004
The claimant appealed against a costs order. She had previously appealed against an order of the High Court on her application for judicial review of the inquest held by the respondent.
Held: The coroner, and others in a similar position . .
Cited – Locabail (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 . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Regina 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 . .

Lists of cited by and citing cases may be incomplete.

Magistrates, Natural Justice

Leading Case

Updated: 31 October 2021; Ref: scu.194531

Otkritie 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 saying that his extensive involvement in the earlier proceedings left a risk of an appearance of bias. The judge agreed, and the claimants appealed.
Held: The appeal was allowed. The judge should not have recused himself.

There is a consistent body of authority to the effect that bias is not to be imputed to a judge by reason of his previous rulings or decisions in the same case (in which a party has participated and been heard) unless it can be shown he is likely to reach his decision ‘by reference to extraneous matters or predilections or preferences’. There can be no suggestion that Eder J would proceed in the present case by reference to such matters. He felt that he had been accused of actual malice, and had based his decision to recuse, but ‘the mere fact that a litigant decides to raise the stakes in that way cannot give rise to any difference of legal principle.’
‘in Dar’s case the judge felt that the informed observer could not have the necessary confidence in the proceedings when the judge had already considered the essential evidence that would be deployed on the committal application and had come to the conclusion that the witnesses giving it were lying to him. A recusal application is a very personal matter for the judge to decide and this court will seldom interfere with this delicate jurisdiction. The overall feeling I have from reading Andrew Smith J’s judgment is that he himself felt uncomfortable about reconsidering essentially the same evidence on the very same issue which he would have to decide in the contempt application. ‘
‘The general rule is that he should not recuse himself, unless he either considers that he genuinely cannot give one or other party a fair hearing or that a fair minded and informed observer would conclude that there was a real possibility that he would not do so . . there must be substantial evidence of actual or imputed bias before the general rule can be overcome. All of the cases, moreover, emphasise that the issue of recusal is extremely fact-sensitive.’

Laws, Longmore, Moore-Bick LJJ
[2014] EWCA Civ 1315
Bailii
England and Wales
Citing:
Cited – Porter 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 – Nathan v Smilovitch and Another CA 13-May-2002
Application to set aside leave to appeal.
Held: It is a rare case in which, once permission to appeal has been granted it is appropriate to set it aside. . .
Cited – Livesey v New South Wales Bar Association 20-May-1983
High Court of Australia – Courts and Judges – Bias – Prejudgment of issues and of credibility of witness – Refusal to withdraw.
The defendant barrister resisted an application to strike his name off the roll. B, at the time a law student and . .
Cited – 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 . .
Cited – Vakauta v Kelly 1989
(High Court of Australia) The majority held that the first instance judge fell on the wrong side of ‘an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could . .
Cited – Arab Monetary Fund v Hashim and Others (No 8) CA 30-Apr-1993
It was suggested that Chadwick J should not continue with the case, having heard previous hearings. He refused to recuse himself. The defendant appealed.
Held: Counsel must use his own and conscientious judgment that there was proper evidence . .
Cited – Locabail (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 . .
Cited – P v The General Council of the Bar; Re P (A Barrister) 24-Jan-2005
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to . .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Cited – Ex Parte Lewin; In re Ward 1946
(Australia – New South Wales) The court heard an an application for a rule nisi for a writ of statutory prohibition directed to a magistrate in proceedings by a landlord for the recovery of premises. The magistrate had already heard and determined a . .
Cited – Dobbs v Triodos Bank Nv (No 1) CA 15-Apr-2005
The defendant a litigant in person sought to stay his appeal. He asked the court to stay his appeal so that he could get legal aid, and to encourage the LSC to grant legal aid.
Held: The court refused. The defendant asserted that courts would . .
Cited – 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 . .
Cited – Dar Al Arkan Real Estate Development Company and Another v Al-Sayed Bader Hashim Al Refai and Others ComC 11-Apr-2014
Applications as to management of committal application. Andrew Smith J had ruled in favour of the applicant/defendant that without notice orders made against them should be discharged because the claimants had misled the court and failed to comply . .
Cited – Re K (A Child) CA 15-Jul-2014
Appeals by a father against orders made in wardship proceedings concerning M, a young boy who was born on 5 July 2012 and is currently in Singapore where he is being cared for by his paternal grandparents. The trial judge had made it plain to a . .
Cited – Re K (A Child) CA 15-Jul-2014
Appeals by a father against orders made in wardship proceedings concerning M, a young boy who was born on 5 July 2012 and is currently in Singapore where he is being cared for by his paternal grandparents. The trial judge had made it plain to a . .

Cited by:
Cited – Hayden v Associated Newspapers Ltd QBD 11-Mar-2020
The claimant alleged defamation by the defendant, and the court now considered the meanings of the words complained of. Another person had been held by police for seven hours after identifying the claimant as a transgendered man.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Natural Justice, Litigation Practice

Updated: 31 October 2021; Ref: scu.537539

Begraj and Another v Heer Manak Solicitors and Others: EAT 17 Jun 2014

begraj_manakEAT0614

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – An Employment Judge was approached by Police Officers part way through a lengthy hearing. They gave her information prejudicial principally to one party, and asked her to keep their approach from the parties. She did so for a week, before revealing what had happened (to both the lay members who constituted the hearing panel, and the parties), but did not answer further questions from the Respondents. After taking time to consider their position, the Respondents applied to the Tribunal to recuse itself, which it did.
The appeal was brought by the Claimants, arguing that there was no proper basis for the recusal; that in any event the Respondents had waived their right to seek it by delay before applying. A Judge should be expected by the fair minded impartial observer to keep irrelevant matters out of mind when reaching a decision (‘compartmentalise’ that information); and the right of the Claimants to access to justice would be denied if there were to be recusal at such a late stage in the hearing, given the time and costs already incurred, such that it would be difficult to afford professional representation before a fresh tribunal.
Held: Waiver had not been argued below, and should have been, but in any event that ground was misplaced. There had been no act inconsistent with seeking recusal, and the Respondents lacked full information. The cost and inconvenience of a rehearing was relevant to justice, but of central importance was having a fair trial before a Tribunal that both was and appeared to be impartial, for as said in AWG Group Ltd v Morrison nothing less would do. The Tribunal’s decision was right: what in particular mattered here, so far as the ‘compartmentalisation’ ground was concerned, was not the possession of untested information prejudicial to one party, but the conduct of the Judge in keeping it, and the circumstances in which it was given to her, from the parties for a week. Appeal dismissed: though the facts of this case were extraordinary, guidance was given as to the approach Tribunals should take if approached by a third party about the merits of a case.

Langstaff J P
[2014] UKEAT 0496 – 13 – 1706
Bailii
England and Wales
Citing:
Cited – Morrison 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 . .

Lists of cited by and citing cases may be incomplete.

Employment, Natural Justice

Updated: 31 October 2021; Ref: scu.526665

British 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 judge. The police were investigating suspected leaks by armed forces officers of materials from the Cabinet Security Committee. The officers had now been cleared.
Held: The Commissioner’s appeal failed. In general, the court should not apply the Al Rawi principle to an application made by a party to litigation (or prospective litigation) to use the procedural powers of the court to obtain evidence for the purposes of the litigation from somebody who is not a party or intended party to the litigation. Such an application will not ordinarily involve the court deciding any question of substantive legal rights as between the applicant and the respondent. Rather it is an ancillary procedure designed to facilitate the attempt of one or other party to see that relevant evidence is made available to the court in determining the substantive dispute. Applications of this kind, such as an application for a witness summons in civil or criminal proceedings, are typically made ex parte.
An application for a production order creates a lis between the person making the application and the person against whom it is made, which may later arise between the police and the suspected person through a criminal charge. Equal treatment of the parties requires that each should know what material the other is asking the court to take into account in making its decision and should have a fair opportunity to respond to it. That is inherent in the concept of an ‘inter partes’ hearing. It was not permissible for the judge to adopt the course described.

Lady Hale, Deputy President, Lord Kerr, Lord Reed, Lord Hughes, Lord Toulson
[2014] UKSC 17, [2014] 2 All ER 705, [2014] EMLR 18, [2014] WLR(D) 123, [2014] 2 WLR 558, [2014] 1 AC 885, [2014] 2 All ER 705, [2014] Crim LR 620, UKSC 2012/0115
Bailii, Bailii Summary, WLRD, SC Summary, SC
Police and Criminal Evidence Act 1984 8, Official Secrets Act 1989 1
England and Wales
Citing:
Appeal from – 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 . .
Cited – Regina v Leicester Crown Court ex parte DPP 1987
The police had applied for an order granting access to an accused’s bank account. The Judge ruled that the application should be made inter partes. The Director of Public Prosecutions sought judicial review of that ruling. By the time the case came . .
Cited – Regina v Lewes Crown Court ex parte Hill 1991
Bingham LJ said: ‘The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a . .
Cited – Regina 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, . .
Cited – Malik 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 . .
Cited – Al 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 . .

Cited by:
Cited – Haralambous, 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 . .
Cited – Haralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .

Lists of cited by and citing cases may be incomplete.

Magistrates, Natural Justice, Criminal Practice, Police

Leading Case

Updated: 31 October 2021; Ref: scu.522381

Jeffery v FSA: UTTC 7 Dec 2012

UTTC FINANCIAL SERVICES – application for recusal of judge – apparent bias – fair-minded and informed observer – whether sharing of office or other proximity to judge formerly chairman of RDC and involved in the case whilst employed by the FSA would lead observer to conclude that there was a real possibility of bias

[2012] UKUT B31 (TCC), FS/2010/0039
Bailii
England and Wales

Financial Services, Natural Justice

Updated: 31 October 2021; Ref: scu.468859

In Re K (Infants); Official Solicitor v K: HL 2 Jan 1963

The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
Lord Devlin spoke of ‘the fundamental principle of justice that the judge should not look at material that the parties before him have not seen’.
Referring to ‘the ordinary principles of a judicial inquiry’, he continued: ‘They include the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially, whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those.’ and ‘[w]here the judge sits purely as an arbiter and relies on the parties for information, the parties have a correlative right that he should act only on information which they have had the opportunity of testing. Where the judge is not sitting purely, or primarily, as an arbiter, but is charged with the paramount duty of protecting one outside the conflict, a rule that is designed for just arbitrament cannot in all circumstances prevail.’

Lord Devlin
[1965] AC 201, [1963] 3 All ER 191
England and Wales
Citing:
Appeal from – In Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
At first Instance (Dicta approved) – In re K (Infants) ChD 1963
Ungoed Thomas J discussed the balance of interests in a wardship case, as it affected disclosure of documents: ‘However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not . .

Cited by:
Cited – Roberts 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: . .
Cited – In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC 3-Mar-2010
The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .
Cited – Al 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 . .
Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
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 . .
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Cited – A 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 . .

Lists of cited by and citing cases may be incomplete.

Children, Administrative, Natural Justice

Leading Case

Updated: 31 October 2021; Ref: scu.228359

Rex v Legislative Committee of the Church Assembly: 1928

It was sought to prohibit the Assembly from proceeding further with the Prayer Book Measure, 1927. I think that the Church Assembly has no such power, and therefore no such duty.’
Held: In order to invoke the court’s jurisdiction to review a decision by means of a prerogative writ, it was necessary to establish that the decision under challenge was made by a decision-maker subject to a duty to act judicially: ‘The question therefore which we have to ask ourselves in this case is whether it is true to say in this matter, either of the Church Assembly as a whole, or of the Legislative Committee of the Church Assembly, that it is a body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially. It is to be observed that in the last sentence of Atkin L .J. the word is not ‘or ‘, but ‘and ‘. In order that a body may satisfy. the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that- the body has the duty to act judicially. The duty to act judicially is an ingredient which, if the test is to be satisfied, must be present. As these writs in the earlier days were issued only to bodies which without any harshness of construction could be called, and naturally – would be called Courts, so also today these Writs do not issue except to bodies which act or are under the duty to act in a judicial capacity .’
Lord Hewart CJ
[1928] 1 KB 411
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.653102

Tahirov v Azerbaijan: ECHR 11 Jun 2015

ECHR Article 3 of Protocol No. 1
Stand for election
Arbitrary refusal to register independent candidate in parliamentary elections: violation
Facts – The applicant wished to stand as an independent candidate in the parliamentary elections of November 2010. As required by the Electoral Code, he collected more than 450 voter signatures in support of his candidacy and submitted them to the Constituency Electoral Commission (‘the ConEC’). In October 2010 his candidacy was refused by the ConEC since, according to an expert working group established by the commission, a number of signatures were invalid, either because they had been executed by the same person or because information relating to the voter’s address was incomplete.
The applicant lodged a complaint with the Central Electoral Commission (‘the CEC’) arguing that in accordance with the Electoral Code he should have been invited to participate in the process of examining the signatures. He further alleged that the finding that 172 signatures had been ‘executed by the same person’ had been based on expert evidence as to probability without any further factual verification and that he should have been given the opportunity to rectify any incomplete addresses. In support of his complaint, he submitted written statements by 91 voters whose signatures had been declared invalid affirming the authenticity of their signatures.
The CEC dismissed the applicant’s complaint after its own working group found that 178 out of the 600 signatures he had submitted were invalid. The applicant was not invited to participate in that process either. The domestic courts dismissed the applicant’s appeal as unsubstantiated, without examining his arguments in detail.
Law – Article 37 – 1: Various types of alleged violations of the rights protected under Article 3 of Protocol No. 1 to the Convention had been the subject of recurrent and relatively numerous complaints to the Court in cases against Azerbaijan after each parliamentary election. This appeared to disclose the existence of systemic or structural issues which called for adequate general measures by the authorities. No such measures were mentioned in the unilateral declaration that had been submitted by the respondent Government in the instant case. The declaration thus did not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols did not require the Court to continue its examination of the case.
Conclusion: Government’s request to strike the application out of the list dismissed (unanimously).
Article 3 of Protocol No. 1: The requirement of collecting 450 supporting signatures for nomination as a candidate had pursued the legitimate aim of reducing the number of fringe candidates.
The Court went on to examine whether the procedure laid down by the Azerbaijani Electoral Code for verifying compliance with that eligibility condition had been conducted in a manner which provided sufficient safeguards against arbitrariness. In that connection, it noted that an OSCE report concerning the Parliamentary Elections of 7 November 2010 in Azerbaijan had expressed concerns about the impartiality of ConEC, the transparency of the registration process and the refusals of registration based on minor technical mistakes. According to the report, most of the complaints received by the CEC challenging refusals had been dismissed without proper examination. Indeed, after the 2010 elections, the European Court itself had received around 30 applications, including the applicant’s, by candidates who had been refused registration owing to the invalidation of supporting signatures. While the refusal to register the applicant’s candidacy – as well as that of many other candidates – had resulted from the alleged inauthenticity of supporting signatures, the Government had not provided specific information about the qualifications and credentials of the working-group experts who had examined the applicant’s signature sheets. In the Court’s view, the lack of clear and sufficient information about the professional qualifications and the criteria for the selection and appointment of working-group experts charged with the task of examining signature sheets was a factor that could seriously undermine overall confidence in the fairness of the procedure of candidate registration and of the elections in general. In any event, the experts had found that there was only a probability that a number of signatures were not authentic, without even specifying how high that probability was. They had not requested any further investigation, although the CEC regulations on electoral commissions’ working groups had provided for possible additional steps in order to clarify the situation.
The applicant’s right to stand for election should not hinge on probabilities and vague opinions, but should be defined by clearly established criteria for compliance with the eligibility conditions. The electoral commissions’ conclusions had therefore been arbitrary. Moreover, none of the procedural guarantees against arbitrariness provided for by the Electoral Code – such as the candidate’s right to be present during the examination of signature sheets or to receive the examination report 24 hours before the relevant electoral commission’s meeting – had been respected. The applicant had therefore been deprived of the opportunity to provide relevant explanations, correct any shortcomings in the signature sheets and to challenge the findings of the working groups throughout the process, a situation which, according to the OSCE report, seemed to be of a systemic nature.
Furthermore, neither the CEC nor the domestic courts had addressed any of the well-founded arguments put forward by the applicant or provided proper reasoning in their judgments. Moreover, contrary to the requirements of the electoral law, the CEC had failed to ensure the applicant’s presence at its meeting. The conduct of the electoral commissions and courts had revealed an apparent lack of genuine concern for upholding the rule of law and protecting the integrity of the election. The applicant had thus not been provided with sufficient safeguards to prevent an arbitrary decision refusing his registration as a candidate.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage.
31953/11 – Legal Summary, [2015] ECHR 648
Bailii
European Convention on Human Rights
Human Rights

Updated: 12 October 2021; Ref: scu.549953

Russell v Duke of Norfolk: CA 1949

Tucker LJ said: ‘There are . . no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.’
Tucker LJ
[1949] 1 All ER 109, (1949) 65 TLR 65
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653105

Hopkins and Another v Smethwick Local Board of Health: CA 1890

Willes J said: ‘In condemning a man to have his house pulled down, a judicial act is as much implied as in fining him pounds 5 ; and as the local board is the only tribunal that can make such an order its act must be a judicial act, and the party to be affected should have a notice given him. . . . The judgment of Willes, J. (in Cooper’s case) goes far more upon the nature of the thing done by the board than on the phraseology of the Act itself. It deals with the case on principle; from the nature of the thing done it must be a judicial act, and justice requires that the man should be heard’.
Held: On Appeal, judgment sustained.
Willes J, Lord Esher MR
(1890) 24 QBD 712, (1890) 59 LJQB 250, (1890) 62 LT 683, (1890) 54 JP 693, (1890) 38 WR 499, (1890) 6 TLR 280
England and Wales
Citing:
Approved – Cooper v Wandsworth Board of Works CCP 21-Apr-1863
A house owner had failed to give proper notice to the Board they had under an Act of 1855 authority to demolish any building he had erected and recover the cost from him. This action was brought against the Board because they had used that power . .

Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653096

Weinberger v Inglis and Others: HL 1919

A member of enemy birth was excluded from the Stock Exchange, and it was held that the Committee had heard him before acting.
Held: The power to admit persons to membership was held to be both an administrative power and a fiduciary power. The Committee had been entitled so to decide. The exercise of the power to refuse re-election did not depend on a finding that the plaintiff had committed any misconduct, indeed, none was suggested.
Lord Birkenhead LC said : ‘If I took the view that the appellant was condemned upon grounds never brought to his notice, I should not assent to the legality of this course, unless compelled by authority’ He said this although the rule under which the Committee acted was in the widest possible terms – that the Committee should each year re-elect such members as they should deem eligible as members of the Stock Exchange.
Lord Birkenhead LC s
[1919] AC 606
England and Wales
Citing:
Appeal From – Weinberger v Inglis ChD 1918
The plaintiff (who had been born in Germany) applied to become a member of the London Stock Exchange. The committee of the Stock Exchange, in the exercise of their discretion, refused the application. The plaintiff brought proceedings challenging . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653100

Andrews v Mitchell: HL 16 May 1904

Sect. 68 of the Friendly Societies Act, 1896, which enacts that every dispute between a member of a friendly society and the society shall be decided in manner directed by the rules of the society, and that the decision so given shall be binding and conclusive on all parties without appeal, does not apply to a decision given by the arbitration committee without jurisdiction, the rules having been disregarded upon a question of substance.
A member of a friendly society was duly summoned before the arbitration committee for a breach of the rules, and was in his absence expelled from the society by a resolution of the committee upon a different charge, namely, of fraud and disgraceful conduct, of which no written notice had been given to him as required by the rules.
Held: that the decision was null and void.
[1905] AC 78, [1904] UKLawRpAC 28
Commonlii
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653103

Fisher v Keane: ChD 2 Dec 1878

The committee of a club, being a quasi-judicial tribunal, are bound, in proceeding under their rules against a member of the club for alleged misconduct, to act according to the ordinary principles of justice, and are not to convict him of an offence warranting his expulsion from the club without giving him due notice of their intention to proceed against’ him, and affording him an opportunity of defending or palliating his conduct: and the Court will, at the instance of any member so proceeded against, declare any resolution passed by the committee without previous notice to him, based upon ex parte evidence and purporting to expel him from the club, to be null and void, and will restrain the committee by injunction from interfering, by virtue of such a resolution, with his rights of membership.
Lord Jessel MR, said ‘clubs, or by any other body of persons who decide upon the conduct of ordinary rules by which justice should be administered by committees of the Committee: They ought not, as I understand it, according to the others, to blast a man’s reputation for ever – perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct ‘
Lord Jessel MR
(1879) 11 Ch D 353, [1878] UKLawRpCh 301;
Commonlii
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653099

Spackman v Plumstead District Board of Works: 1885

The certificate of the superintending architect of the metropolitan board of works made under Metropolis Management (Amendment) Act 1862 section 75 and fixing the general line of buildings in a road was conclusive as to a building erected before the certificate was made, and, on the hearing of a summons issued after the making of the certificate, for an offence under the section, alleged to have been committed in respect of such building, the Justice had no jurisdiction to review the Architect’s decision or decide for himself whether the line fixed by the certificate was the true general line.
(1885) 10 App Cas 229
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653097

Rex v North; Ex parte Oakey: CA 1927

Proceedings in the Consistory Court were found to be: ‘without jurisdiction’ and prohibition lay.
Scrutton LJ said: ‘In my view an order that anyone shall pay the cost of restoring work which has been obliterated without a faculty is in the nature of a penalty for an ecclesiastical offence, and one of the most fundamental principles of English law is that if you are going to impose on a person a penalty for an offence, you must first clearly inform him that an application to that effect is going to be made against him, so that he may know what he is charged with and have an opportunity of attending to meet it.’
Lord Justice Atkin observed: ‘I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction.’
Lord Justice Atkin, Scrutton LJ
[1927] 1 KB 491
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653104

Wood v Woad: CEC 1 Jun 1874

Declaration, alleging that the plaintiff was a member of a mutual insurance society, which insured members against losses to ships entered and insured in the books of the society, on a deposit being made of 5l. per cent, on the amount insured ; that the defendants were the committee of the society, by the rules of which they had the entire control of the funds and affairs of the society, and were to determine on the admission or rejection of ships insured or proposed for insurance; that by another rule, ‘if the committee shall at any time deem the conduct of any member suspicious, or that such member is for any other reason unworthy of remaining in this society, they shall have full power to exclude such member, by directing the secretary to give such member notice in writing that the committee have excluded such member from the society, and, after the giving of such notice, such member shall be excluded, and have no claim or be responsible for or in respect of any loss or damage happening after such notice ; ‘ that the plaintiff, as such member, had entered a ship on the books of the society, and had paid the deposit, and was thereupon entitled to an indemnity for loss happening to the ship ; that the defendants, well knowing the premises, but ‘wrongfully, collusively, and improperly contriving to deprive the plaintiff of the benefit of such indemnity, did wrongfully, collusively, and improperly expel the plaintiff from the society on the alleged ground that his conduct was suspicious, or that he was for some reason unworthy of remaining in the society, without giving the plaintiff, or any person on his behalf, any opportunity whatsoever of being heard before them, and without, in fact, hearing the plaintiff, or any person on his behalf, in defence and vindication of the plaintiff’s conduct as a member of the society with reference to the said ground of expulsion ‘; whereby the plaintiff lost the benefit of an indemnity for damage which his ship subsequently sustained, and was otherwise damnified. Demurrer.
Held: that the declaration shewed no cause of action.
By Kelly, C.B., Pollock and Amphlett, BB. (following Blisset v. Daniel, 10 Hare, 493), on the ground that, assuming the allegations of the declaration to be true, the act of the defendants in expelling the plaintiff without giving him an opportunity of being heard was void ; that the plaintiff, therefore, still remained a member of the society, and had sustained no damage.
By Cleasby and Pollock, BB., on the ground that the declaration did not sufficiently charge mala fides.
Quaere, by Cleasby and Amphlett, BB., whether any action would lie against the defendants for acts done by them in the discharge of their functions as members of the committee.
Kelly CB said of audi alteram partem: ‘This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals’.
Kelly CB
[1874] UKLawRpExch 26, (1873-1874) LR 9 Exch 190
Commonlii
England and Wales
Citing:
Cited – Blisset v Daniel 1853
The court considered the limits on a power of expulsion from a partnership.
Held: (Page-Wood V-C) Construing the articles, two-thirds of the partners could expel a partner by serving a notice upon him without holding any meeting or giving any . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653098

Cooper v Wandsworth Board of Works: CCP 21 Apr 1863

A house owner had failed to give proper notice to the Board they had under an Act of 1855 authority to demolish any building he had erected and recover the cost from him. This action was brought against the Board because they had used that power without giving the owner an opportunity of being heard. The Board maintained that their discretion to order demolition was not a judicial discretion and that any appeal should have been to the Metropolitan Board of Works.
Byles J said: ‘although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature’.
Erie CJ held that the power was subject to a qualification repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard and that this had been applied to ‘many exercises of power which in common understanding would not be at all a more judicial proceeding than would be the act of the district board in ordering a house to be pulled down’.
Willes J said that the rule was ‘of universal application and founded upon the plainest principles of justice’
Byles J, Eyrie CJ, Willes J
(1863) 32 LJCP 185, (1863) 14 CBNS 180, (1863) 143 ER 414, [1863] EngR 424
Worldlii
England and Wales
Cited by:
Approved – Hopkins and Another v Smethwick Local Board of Health CA 1890
Willes J said: ‘In condemning a man to have his house pulled down, a judicial act is as much implied as in fining him pounds 5 ; and as the local board is the only tribunal that can make such an order its act must be a judicial act, and the party to . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653095

Dawkins v Antrobus: CA 1 Feb 1881

The Court will not interfere against the decision of the members of a club professing to act under their rules, unless it can be shewn either that the rules are contrary to natural justice, or that what has been done is contrary to the rules, or that there has been mala fides or malice in arriving at the decision. One of the rules of a club provided that a general meeting might alter any of the standing rules affecting the general interests of the club, provided this was done with certain formalities and by a certain majority.
Held: that a rule providing for the expulsion of members who should be guilty of conduct injurious to the interests of the club was within the regulation, and could be validly passed by a general meeting. One of the rules of a club provided that in case the conduct of any member should, in the opinion of the committee, be injurious to the character and interests of the club, the committee should be empowered to recommend such member to resign, and if he should not comply, the committee should then call a general meeting, and if a majority of two-thirds of the meeting agreed by ballot to the expulsion of such member, he should be expelled.
The Plaintiff, a member of the club, sent a pamphlet which reflected on the conduct of S, a gentleman in a high official position, also a member of the club, to S, at his official address, enclosed in an envelope on the outside of which was printed ‘Dishonourable Conduct of S.’ The committee being of opinion that this action was injurious to the character and interests of the club, called upon the Plaintiff for an explanation, which he refused to give. They then called on him to resign, and as he did not comply with their recommendation, they duly summoned a general meeting, at which a resolution was passed by the requisite majority expelling the Plaintiff from the club. Held (affirming the decision of Jessel, MR), that the Court would not interfere to restrain the committee from excluding the Plaintiff from the club. t Nothing had been done contrary to natural justice. The fact that a decision is unreasonable may be strong evidence of malice, but is not conclusive, and may be rebutted by evidence of bona fides.

Sir George Jessel MR said: ‘I think it is my duty to construe the rules fairly and in the same way as I should any other contract and I have no right to give the words other than their ordinary meaning, or to construe the rules otherwise than in their ordinary sense.’
Sir George Jessel MR
(1881) 17 Ch D 615, [1881] UKLawRpCh 28
England and Wales
Cited by:
Cited – Speechley and Others v Allott and Others CA 10-Mar-2014
The parties disputed the management of a social club. The club owned a bowling green, and bowling members sought to restrain its closure. The appellants now said that the court should not have found at first instance that a meeting had validly . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.551299

Osgood v Nelson: HL 1872

The officer in question was an officer of the Corporation of the City of London, and he had been charged in general terms with neglect in the performance of his duty as Registrar of the Sheriffs’ Court. There was statutory power for the Corporation to dismiss the clerk to the Sheriff’s Court ‘in case of inability or misbehaviour or for any other cause which may appear reasonable’.
Held: There arose a duty before exercising the power of dismissal to give the officer an opportunity of knowing the charges and of the evidence in support of them and of producing such evidence as he desired to produce. Findings and decisions unsupported by evidence are capricious, unreasonable or arbitrary. In considering whether a conclusion was reasonably open to a domestic tribunal, it is appropriate to ask whether there was any evidence upon which a jury might have come to the conclusion reached.
Lord Hatherley LC said: ‘I apprehend, my Lords, that, as has been stated by the learned Baron who has delivered, in the name of the Judges, their unanimous opinion, the Court of Queen’s Bench has always considered that it has been open to that Court, as in this case it appears to have considered, to correct any Court, or tribunal, or body of men who may have a power of this description, a power of removing from office, if it should be found that such persons have disregarded any of the essentials of justice in the course of their enquiry, before making that removal, or if it should be found that in the place of reasonable cause those persons have acted obviously upon mere individual caprice’.
Lord Colonsay said: ‘Then it is said that the charge against him was too general in its character, it being merely that he had not performed his duties satisfactorily. I quite agree that if that had been the original charge against Mr. Osgood, and if he was called before this tribunal upon an allegation that he had not properly discharged the duties of his office, he was entitled to ask, and to require, that he should be told in what respect it was supposed that he had not properly discharged the duties of his office. But the matters in which it was said that he had neglected his duties, or that he had improperly performed them, were stated, to a certain extent, at the outset, and the rest were evolved in the course of the inquiry, and Mr. Osgood was afforded an opportunity of meeting them, and he did meet them. Whether he met them satisfactorily or not is a different question.’
. . And: ‘Now, if there had never been any specific statement, either made by Mr. Aikman or evolved in the course of the inquiry, I should have thought that that finding of the Common Council was very similar to what occurred in one of the cases which has been cited at the Bar, and that it would have been too vague for such a case. But when we see that there had been charges made, and matters particularly evolved in the course of the inquiry, I think the general finding must be referred to those matters, and taken as being a general conclusion derived from the inquiry into those matters.’
Lord Colonsay, Lord Hatherley LC
(1872) LR 5 HL 636
England and Wales
Cited by:
Cited – Khanum 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 . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.518489

De Verteuil v The Hon Samuel William Knaggs Acting Governor and Another: PC 21 Mar 1918

(Trinidad and Tobago) the Governor of Trinidad was entitled to remove immigrants from an estate ‘on sufficient ground shewn to his satisfaction ‘.
Held: Lord Parmoor said that ‘the acting Governor was not called upon to give a decision on an appeal between parties, and it is not suggested that he holds the position of a judge or that the appellant is entitled to insist on the forms used in ordinary judicial procedure , but he had a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice’.
Lord Parmoor
[1918] UKPC 29
Bailii
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.423400

Lapointe v L’ Association De Bienfaisance Et Retraite De La Police De Montreal: PC 27 Jul 1906

(Quebec) The appellant, who was a member of the respondent benevolent and pension society, had been obliged to resign from the police force. Under those circumstances he became entitled according to the rules to have his case for a gratuity or pension considered by the board of directors and his right to such gratuity or pension determined by a majority of the board.
Held: They had to observe ‘the elementary principles of justice’. The so-called determination of the board was void and of no effect and the order which the Board humbly advised included a declaration and determination as required by the rules and that the proceedings were null and void.
Lord Macnaghten said: ‘They first appointed a committee of four from their own body to investigate the reason of Lapointe’s resignation. There would have been no objection to this course if the committee had been deputed to consider and report whether or not there was a prima facie case for inquiry. But what the committee did was to listen to all sorts of stories about Lapointe’s past history, and rake up everything that was against him during his connection with the force. Then, without telling Lapointe what the charges against him were, or giving him any opportunity of defending himself, they advised the board that the pension should be refused. Thereupon the board abnegated their judicial duties altogether. They summoned a general meeting of the members, and submitted a question, which they were bound to determine themselves, to a popular vote. The meeting was held on April 26, 1892, when by a large majority of the members present it was resolved that Lapointe’s name should not be entered on the pension roll of the society.
The whole of these proceedings were irregular, contrary to the rules of the society, and above all contrary to the elementary principles of justice. And the position of the board was certainly not improved by a formal resolution stating solemnly, what was contrary to the truth, that after having inquired into the facts and circumstances which brought about Lapointe’s resignation, and having deliberated upon his claim, the board ‘ decides that the pension on which he claims be refused, seeing that he was obliged to tender his resignation’.’
Lord Macnaghten
[1906] UKPC 56, [1906] AC 535, [1906] UKLawRpAC 36
Bailii, Commonlii
Canada
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.419774

James Dunbar Smith v The Queen: PC 12 Mar 1878

(Queensland) This was an action of ejectment on the alleged forfeiture of a Crown lease in Queensland. The Governor was entitled to forfeit the lease if it had been proved to the satisfaction of a Commissioner that the lessee had abandoned or ceased to reside on the land. The Commissioner did not disclose to the lessee the case against him so that he had no opportunity to meet it.
Held: The decision could not stand. The Commissioner was not bound by any rules as to procedure or evidence but he had to conduct his enquiry ‘according to the requirements of substantial justice’.
[1878] UKPC 11, (1878) 3 App Cas 614
Bailii
Australia
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.418662

Cooper v Wilson: 1937

Police officers can be removed from office only by a valid exercise of the statutory power of dismissal. The principles of natural justice applied in the dismissal.
[1937] 2 KB 309
England and Wales
Cited by:
Cited – Flaherty 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 . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.230096

Kaur, 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 on the appeal tribunal infringed the rule against apparent bias.
Held: In other regulatory professional bodies, members of a ruling council were precluded from sitting on disciplinary tribunals, and indeed ILEX itself had changed its own arrangements. ‘Participation in a prosecutorial capacity, even if not in the case in question, will disqualify or else raise concern in the mind of the fair-minded observer about the appearance of impartial justice. Even an employee of a prosecuting agency may fall within this disqualification or concern, even though not employed in a prosecutorial capacity, provided the employment is significant enough in length or importance or location.’ and ‘the ‘fundamental’ concern goes much wider than involvement in the allegations in the instant case on which the panel member was called to adjudicate. Nor does an underlying fair procedure make up for a perception of the real possibility of bias. Nor can one assess the play of the issues concerned by reference to confidence in a fair outcome.’
Rix, Sullivan, Black LJJ
[2011] EWCA Civ 1168
Bailii
England and Wales
Citing:
Cited – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Cited – P v The General Council of the Bar; Re P (A Barrister) 24-Jan-2005
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to . .
Cited – Regina 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 . .
Leave Refused – Kaur, Regina (on The Application of) v Ilex Tribunal Admn 23-Nov-2010
The claimant appealed against refusal of leave to bring judicial review of the decision of the respondent’s disciplinary panel. . .
Cited – Davidson 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 . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Porter 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 – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – 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. . .
Cited – Regina 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 . .
Cited – Regina v LL CACD 2011
It came to light that at the trial of the appellant that one juror was a current employee of the Crown Prosecution Service (CPS) in general administrative duties, another was a serving police officer in an administrative and non-operational role, . .
Cited – 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 . .
Cited – Meerabux 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 . .
Cited – Sadighi v General Dental Council Admn 5-May-2009
The dentist had been convicted by the Council’s professional conduct committee of dishonesty in forging the records of treatment of his patient. The committee tribunal had been chaired by Dr Leitch, who ending five years previously had served for . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.445855

Davies v Price: CA 1958

Parker LJ said that even if the Agricultural Land Tribunal had misconstrued a statute that did not mean that they had exceeded their jurisdiction: ‘they clearly had jurisdiction to decide whether to give or withhold consent, and if they misconstrued the statute or acted on no evidence, they merely erred in law.’ If affidavits ‘showed that they must have misconstrued the statute, that is not a question of want of jurisdiction.’
Parker LJ, Lord Evershed MR and Sellers LJ
[1958] 1 WLR 434
England and Wales
Cited by:
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a Nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a Nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.653278

The Board of Trustees of The Maradana Mosque v The Honourable Badi-Ud-Din Mahmud and Another: PC 19 Jan 1966

(Ceylon) the rules of natural justice had been violated.
Where statutory authority was given to a Minister to act if he was satisfied that a school is being administered in a certain way he was not given authority to act because he was satisfied that the school had been administered in that way. It could be said that the Minister had asked himself the wrong question: so he had, but he never brought himself within the area of his jurisdiction.
[1966] UKPC 2, [1966] UKPC 2, [1967] 1 AC 13, [1966] 1 All ER 545, [1966] 2 WLR 921, [1967] 1 AC 645, [1966] 2 All ER 989
Bailii, Bailii
England and Wales
Cited by:
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a Nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.581040

Lyde v Crawford: 1838

The Court will not, in general, proceed in the absence of the party solely, or even generally to be affected by the decree.
[1838] EngR 169, (1838-1841) 1 Coop T Cott 370, (1838) 47 ER 901 (A)
Commonlii
England and Wales

Updated: 14 September 2021; Ref: scu.312175

Liewe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Hm Advocate: HCJ 14 Apr 2000

A judge, having given judgment in an appeal case involving the application of the convention on Human Rights, wrote and published an article critical of the convention, and of its application in national law. The appeal decision was set aside, since the reality or appearance of objective impartiality which was clearly required by both common law and the convention had been lost. The requirement for impartiality was both objective and subjective.
Lord Justice General and Lady Cosgrove and Lord Sutherland
Times 14-Apr-2000, [2000] ScotHC 32
Bailii
European Convention on Human Rights
Scotland
Citing:
See Also – Note of Appeal Against Conviction and Sentence By Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Her Majesty’s Advocate HCJ 28-Jan-2000
. .
See Also – Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Endrik Van Rijs v Her Majesty’s Advocate HCJ 7-Mar-2000
. .

Cited by:
See Also – Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Her Majesty’s Advocate HCJ 2-Jun-2000
. .
See Also – Hoekstra and Others v Her Majesty’s Advocate High Court of Justiciary PC 26-Oct-2000
The Privy Council has no standing to act as a general court of appeal on Scottish law. The jurisdiction given to it by the Act, was limited as prescribed by the Act to what are called devolution issues, issues related to the acts of devolution. Not . .
See Also – Hoekstra and Van Rijs etc v Her Majesty’s Advocate HCJ 18-Jan-2001
. .
See Also – Hoekstra and Van Rijs and Van Rijs and Van Rijs v Her Majesty’s Advocate HCJ 23-Jan-2002
. .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.81423

Marriott v Minister of Health: 1936

[1936] LJKB 105, [1939] 1 KB 232, [1938] 4 All ER 32
England and Wales
Cited by:
Appeal from (Affirmed) – Marriott v Minister of Health CA 1936
Nottingham Corporation on June 4th 1930, resolved that a certain area should be a clearance area, and on the same day made a compulsory purchase order in respect or part thereof. On that part of the area there were 39 houses of which 27 were the . .
Cited – Khanum 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.
Updated: 11 September 2021; Ref: scu.518490

Marriott v Minister of Health: CA 1936

Nottingham Corporation on June 4th 1930, resolved that a certain area should be a clearance area, and on the same day made a compulsory purchase order in respect or part thereof. On that part of the area there were 39 houses of which 27 were the property of the applicant. On July 21st the applicant instructed a builder to demolish all the 27 houses, and the demolition work began on July 26th and was completed before October the 2nd. Notice of the order was served on the applicant on July 30th, and he lost his objection on August 15th. On October 2nd the local enquiry began at which the fact of demolition was proved. On January 16th 1935, the minister confirmed the order. The applicant questioned the validity of the order and applied under the Housing Act 1930 section 11 to have it quashed.
Held: Before confirming an order of the minister ought to have considered matters as they were at the time of the local inquiry, and, as there was at that time no subject matter on which the act could have operated, the Minister ought not to have confirmed the order either with or without modification.
The mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction
Greer LJ
[1937] 1 KB 128, [1936] 2 All ER 865, (1936) 1 LJKB 149, (1936) 155 LT 94, (1936) 100 JP 432, (1936) 52 TLR 643, (1936) 80 Sol Jo 533, (1936) 34 LGR 401
England and Wales
Citing:
Appeal from (Affirmed) – Marriott v Minister of Health 1936
. .

Cited by:
Cited – Khanum 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.
Updated: 11 September 2021; Ref: scu.518491

Khanum 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 he should be given an opportunity to state his case; and (3) that the tribunal should act in good faith.
Bristow J said: ‘We appreciate, of course, the force of the proposition that it is desirable to test evidence by cross-examination in order to get at the truth. We find it difficult to understand how, short of that, there can be the sort of virtue in having the patients’ story told in person which makes a failure to insist upon this a breach of natural justice. On the authorities cited to us it is clear that in some circumstances it may amount to a breach of natural justice to refuse a party the right to cross-examine a witness who has given evidence, or not to afford the opportunity for cross-examination: see e.g., Osgood v. Nelson (1872) L.R. 5 H.L. 636; Marriott v. Minister of Health [1937] 1 K.B. 128 and Nicholson v. Secretary of State for Energy, The Times, August 6, 1977. See also the Canadian decisions of Strathcona (County) No 20 and Chemcell Ltd. v. Provincial Planning Board, City of Edmonton (1970) 75 W.W.R. 488. It is equally clear on authority that in some circumstances the failure to afford the opportunity for cross-examination is not a failure to follow the rules of natural justice: see e.g., T.A.Miller Ltd v. Minister of Housing and Local Government [1968] 1 W.L.R. 992 and Ceylon University v. Fernando [1960] 1 WLR 223.
Some of the authorities are not easily reconciled and we do not think it would be helpful to try to do so, for in the end how nearly a domestic disciplinary inquiry, or any other inquiry by a statutory body, a public statutory inquiry, or any other inquiry which has to make decisions must approach to the full-blown procedure of a court of justice in order to comply with the rules of natural justice is not doubt a matter of degree. But in our judgment as regards the sort of domestic tribunal with which we are concerned in this case the law is as it was expressed by Harman J. in Byrne v Kinematograph Renters Society Ltd [1958] 1 W.L.R. 762, 784 and approved and applied by the Privy Council to the context of a University Vice-Chancellor’s inquiry into cheating in examinations in Fernando’s Case . . If you apply the law as so expressed to the proceedings of the domestic disciplinary inquiry at both levels in this case, each of the three requirements are amply fulfilled. We think it right to add that it would be surprising to find that a hearing conducted, as the appeals panel hearing was expressly conducted, in accordance with agreed draft Whitley Council procedures turned out to have been conducted in breach of the rules of natural justice.’
Bristow J
[1979] ICR 40
England and Wales
Citing:
Cited – Byrne v Kinematograph Renters Society Ltd 1958
The court formulated the principles of natural justice: ‘What then are the requirements of natural justice? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to . .
Cited – Osgood v Nelson HL 1872
The officer in question was an officer of the Corporation of the City of London, and he had been charged in general terms with neglect in the performance of his duty as Registrar of the Sheriffs’ Court. There was statutory power for the Corporation . .
Cited – Marriott v Minister of Health 1936
. .
Cited – Marriott v Minister of Health CA 1936
Nottingham Corporation on June 4th 1930, resolved that a certain area should be a clearance area, and on the same day made a compulsory purchase order in respect or part thereof. On that part of the area there were 39 houses of which 27 were the . .
Cited – 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 . .
Cited – Bentley Engineering Co Ltd v Mistry EAT 1978
In employment disciplinary proceedings, natural justice required that a man should have a chance to state his own case and to know sufficiently what was being said against him, so that he could put forward his own case properly.
Slynn J said: . .

Cited by:
Cited – Santamera v Express Cargo Forwarding (T/A IEC Ltd) EAT 26-Nov-2002
The claimant appealed against a decision that she had not been unfairly dismissed. She had been dismissed after complaints by a colleague, but had not been given the opportunity to examine him during the process.
Held: An employer was not duty . .
Cited – ADT Auctions Ltd v Nayar EAT 7-Apr-1998
The EAT considered a complaint by the dismissed employee that he had not been given the opportunity to cross examine the witnesses who had provided statements against him. . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.341168

Regina v Chief Constable of the Thames Valley Police, Ex parte Cotton: CA 1990

The Chief Constable’s power to dispense with a probationer’s services under Condition 7 is only exercisable in cases where the probationer constable’s unfitness does not arise from alleged misconduct, for example where it arises from the constable’s mental or physical condition, such as being overweight.
Bingham LJ said: ‘As to the fairness of the Chief constable making such a decision, the absence of prejudice may be a relevant factor in the denial of a remedy, but to deny a remedy as a matter of discretion in such a case should be a rarity. While cases may arise where denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity. There are a number of reasons for this. 1) Unless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance 2) As memorably pointed out by Megarry J in John v Rees [1970] Ch 345 at p.402, experience shows that that which is confidently expected is by no means always that which happens. 3) It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if the complainant’s position became weaker as the decision-maker’s mind became more closed. 4) In considering whether the complainant’s representations would have made any difference to the outcome the court may 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 a decision. 5) This is a field in which appearances are generally thought to matter. 6) Where a decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied.’
Bingham LJ
[1990] IRLR 344
England and Wales
Citing:
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .

Cited by:
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Regina 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 . .
Cited – National Association of Health Stores and Another, Regina (on the Application of) v Department of Health CA 22-Feb-2005
Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
Cited – Shoesmith, 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.187082

Campbell v The Queen (Jamaica): PC 16 Dec 1996

The defendant appealed his conviction of murder. The United Nations Human Rights Committee had expressed the view that he had not had a fair trial. The judge was said to have been brusque with him, and though a child, he had been held overnight at a police station.
Held: The appeal should be dismissed: ‘The question for their Lordships is whether the conduct of the judge was such as to cause a miscarriage of justice. Having examined the detail of the allegations made against him their Lordships are satisfied that while he might have exercised a greater degree of sensitivity in the delicate task of handling a witness of such tender years, the trial was not unfair nor did any miscarriage of justice occur. The judge gave a full and careful summing up of which no criticism has been made to their Lordships.’
Lord Goff of Chieveley, Lord Keith of Kinkel, Lord Mustill

Lord Hoffmann

Lord Clyde
[1996] UKPC 49
Bailii
England and Wales

Updated: 03 September 2021; Ref: scu.159208

Henshall v General Medical Council and others: CA 13 Dec 2005

The claimant had lodged a complaint against a medical practitioner. The preliminary proceedings committee had accepted evidence from the doctor, but had not given the complainant opportunity to see it and comment upon it.
Held: the rules must be read so as to make sure a complainant had such opportunity. Such a practice would always be disallowed under common law: ‘one of its principal effects was to ensure that the author of a complaint which had been rejected without due process had no way of finding this out unless it appeared on the face of the decision letter. A second effect, germane to this case, was that the rule was ineffective unless the PPC also adopted a policy of non-disclosure prior to its decision on referral. ‘
[2005] EWCA Civ 1520, Times 09-Jan-2006
Bailii
England and Wales
Citing:
Cited – Regina v The General Medical Council, ex parte Arpad Toth, Dr David Jarman Interested Party QBD 29-Jun-2000
A complaint to the General Medical Council should be heard in public unless there was some particular and pressing circumstance. Openness was required to maintain the confidence of the public in the profession, and complainants had a legitimate . .
Cited – Woods v The General Medical Council CA 18-Jul-2002
. .
Cited – Regina v General Medical Council, ex parte McNicholas Admn 2001
. .
Cited – Holmes, Regina (on the Application of) v General Medical Council CA 28-Oct-2002
. .
Cited – Regina v General Medical Council, ex parte Richards QBD 24-Jan-2001
The General Medical Council, when they conducted a preliminary proceeding, should not, in any case involving substantial conflicts of evidence, seek itself to resolve those conflicts. To do so would be to usurp the function of the professional . .
Cited – Board of Education v Rice HL 6-Apr-1911
A local education authority refused to pay salaries to teachers in a non-provided school at the same rate as it paid the teachers in provided schools. The managers of the non-provided school complained, and the Board of Education directed an . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Regina v Secretary of State for the Environment ex parte Norwich City Council CA 1982
. .
Cited – Roberts 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: . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.235930

In re K (Infants): ChD 1963

Ungoed Thomas J discussed the balance of interests in a wardship case, as it affected disclosure of documents: ‘However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose . . In general publicity is vital to the administration of justice. Disclosure to the parties not only enables them to present their case fully but it provides in some degree the advantages of publicity; and it further ensures that the court has the assistance of those parties in arriving at the right decision. So when full disclosure is not made, it should be limited only to the extent necessary to achieve the object of the jurisdiction and no further.’
Ungoed Thomas J
[1963] Ch 381
England and Wales
Cited by:
Appeal from – In Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
At first Instance (Dicta approved) – In Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.467128

In Re K (Infants): CA 2 Jan 1963

The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong. It cannot be withheld from him in whole or in part. If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally vitally concerned, the proceedings cannot be described as judicial.’
Devlin L set out: ‘ the fundamental principle of justice that the judge should not look at material that the parties before him have not seen.’
Upjohn LJ
[1963] Ch 381
England and Wales
Citing:
Appeal from – In re K (Infants) ChD 1963
Ungoed Thomas J discussed the balance of interests in a wardship case, as it affected disclosure of documents: ‘However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not . .

Cited by:
Appeal from – In Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
Cited – Roberts 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: . .
Cited – Murungaru v Secretary of State for the Home Department and others Admn 4-Oct-2006
The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with . .
Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
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 . .
Cited – Al 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.228358

Weinberger v Inglis: ChD 1918

The plaintiff (who had been born in Germany) applied to become a member of the London Stock Exchange. The committee of the Stock Exchange, in the exercise of their discretion, refused the application. The plaintiff brought proceedings challenging that refusal and he alleged in his statement of claim that the committee did not exercise their discretion in a bona fide way. It had been established that there was a presumption that the committee of the Stock Exchange acted in a bona fide way and that the onus of rebutting this presumption lay upon a party who wished to challenge the decision of the committee. The plaintiff alleged that the committee did not exercise any discretion either bona fide , fairly, reasonably or judicially, but had acted arbitrarily. In their defence, the committee traversed each of the allegations made in the statement of claim. In addition it was specifically alleged that the committee, acting bona fide and honestly in the exercise of their duty and discretion under the Stock Exchange rules decided not to admit the plaintiff to membership of the exchange. The plaintiff sought particulars of the defence (including particulars of the allegations made). Among the particulars sought by the plaintiff were the facts and grounds on which the committee based their decision.
Held: The application for an order compelling the defendants to furnish the particulars was refused. Astbury J identified the rationale underlying the principle: ‘As a general rule the Court never orders a defendant to give particulars of facts and matters which the plaintiff has to prove in order to succeed, and this is especially the case where a defendant has confined himself to putting the plaintiff to the proof of allegations in the statement of claim, the onus of establishing which lies upon him.’ He reiterated the same point in these terms: ‘Under Order XIX r. 7, further particulars may be ordered of any matter ‘stated’ in any pleading requiring particulars. A traverse by a defendant, even of a negative plea by a plaintiff which he must establish in order to succeed, is not, in my judgment, a matter ‘stated’ within the defence within the meaning of this rule. The rules under the Judicature Act abolishing the general issue were intended to limit and define the issues to be tried, but not to force a defendant on a traverse to undertake the burden of proving anything himself, and still less to relieve a plaintiff from any onus of proof resting solely upon him.’
Astbury J
[1918] 1 Ch 133
England and Wales
Cited by:
Appeal From – Weinberger v Inglis and Others HL 1919
A member of enemy birth was excluded from the Stock Exchange, and it was held that the Committee had heard him before acting.
Held: The power to admit persons to membership was held to be both an administrative power and a fiduciary power. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.653101

Columbia Pictures Industries Inc v Robinson: ChD 1986

The plaintiff had obtained an Anton Piller order against a defendant whose business consisted almost entirely in the manufacture and sale of pirated videos.
Held: The injunction had been obtained for an improper purpose and without full disclosure. It was wrong in principle to grant an injunction, the scope of which the defendants could not know and could not discover.
There was no provision in the Copyright Act 1956 for presumptions as to the subsistence of copyright and its ownership to arise from labels or marks fixed to films. Injunctions were granted in relation to copyrights to which it had been established in the action that existing members were entitled.
Scott J considered the request for an injunction to protect the plaintiff’s intellectual property: ‘In the circumstances, I have no doubt but that the plaintiffs have established in this case that they are entitled to the protection of an injunction.
Counsel, however, has sought on the plaintiffs’ behalf an injunction of a very great breadth. He has sought an injunction restraining the defendants from knowingly infringing copyright in any film for the time belonging to any of the plaintiffs (meaning any member of the MPAA besides the named plaintiffs) or in respect of which any of them is for the time being the exclusive licensee.
It would be impossible for the defendants to know what films were covered by an injunction in that form. In my judgment it would be wrong in principle to grant an injunction the scope of which the defendants subject to it could not know and could not discover. Experience in this litigation has underlined the very great difficulty that is often experienced in ascertaining in whom copyright or exclusive rights in a particular film are for the time being vested.
I am prepared to grant an injunction protecting the copyright or exclusive rights of any of the present plaintiffs in the films in respect of which their respective titles have been established in this action. I am not prepared to extend this protection to companies who are not plaintiffs, that is to say to future MPAA members. Nor am I prepared to extend this protection to cover other films. I am, however, willing to give the present plaintiffs or any of them liberty to apply from time to time on notice to the defendants to extend the injunction to other films. In order to obtain that extension, I contemplate that the applicant would have to satisfy the court, first, that it had copyright or exclusive rights in the film or films in question and, second, either that it had applied to the defendants for suitable undertakings which had not been given, or that for some reason undertakings by the defendants would not be sufficient. The costs of any such application would of course depend on the circumstances of that application.’
Scott J declined to order an inquiry into damages under the plaintiff’s undertaking because the losses had been incurred in a business which was ‘illicit’ albeit not criminal under the law as it then stood.
A solicitor making an ex parte application for an Anton Piller order has a strict duty to m ake full and frank disclosure of all relevant matters, and must not act oppressivley in the execution of the order. In case of a breach of these obligations, the remedy was in damages, not necessarily in the removal of the order. The court considered the use of ex parte applications: ‘It is a fundamental principle of civil jurisprudence in this country that citizens are not to be deprived of their property by judicial or quasi-judicial order without a fair hearing’ and ‘what is to be said of the Anton Piller procedure which, on a regular and institutionalised basis, is depriving citizens of their property and closing down their businesses by orders made ex parte, on applications of which they know nothing and at which they cannot be heard, by orders which they are forced . . to obey, even if wrongly made?’
Scott J
[1987] Ch 38, [1986] 3 WLR 542, [1986] FSR 367, [1986] 3 All ER 338
Copyright Act 1956
England and Wales
Cited by:
Cited – Independiente Ltd and others v Music Trading On-Line (HK) Ltd and others ChD 13-Mar-2003
The claimants claimed damages for the sale by the defendants in the UK of CD’s manufactured for sale only in the far East. The defendants challenged the right of a claimant phonographic society to have the right to sue on behalf of its members.
Cited – Trent Strategic Health Authority v Jain and Another HL 21-Jan-2009
The claimants’ nursing home business had been effectively destroyed by the actions of the Authority which had applied to revoke their licence without them being given notice and opportunity to reply. They succeeded on appeal, but the business was by . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.280408