The claimant sought to enforce the arbitrator’s award. The defendant said that the manner its having been reached infringed natural justice.
Ramsey J
[2013] EWHC 1186 (TCC)
Bailii
England and Wales
Updated: 27 July 2021; Ref: scu.503517
The claimant sought to enforce the arbitrator’s award. The defendant said that the manner its having been reached infringed natural justice.
Ramsey J
[2013] EWHC 1186 (TCC)
Bailii
England and Wales
Updated: 27 July 2021; Ref: scu.503517
The applicant applied to have quashed the decision of the local council to exclude him from trading in the market and to revoke his right to have a stall.
Held: He succeeded on the grounds that the decision had been taken in breach of the rules of natural justice. the right of a stallholder to have access to the market was conferred by common law, and could only be taken away for just cause and then only in accordance with the principles of natural justice. ‘I do not mind whether the market-holder is exercising a judicial or administrative function’. Lord Scarman emphasised the common law right in the public to go to market to buy and sell, subject to the statutory regulation of the exercise of that right by the local authority: ‘Although, therefore, there is a contractual element in this case, there is also an element of public law: the enjoyment of rights conferred on the subject by the common law. I think, therefore, on analysis, it is clear that the corporation in its conduct of this market is a body having legal authority to determine questions affecting the rights of subjects’.
Lord Denning MR said: ‘[T]here are old cases which show that the court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion . . It is quite wrong that the Barnsley Corporation should inflict upon [Mr Hook] the grave penalty of depriving him of his livelihood. That is a far more serious penalty than anything the magistrates could inflict. He is a man of good character, and ought not to be penalised thus . . ‘
Lord Denning MR, Scarman LJ
[1976] 1 WLR 1052
England and Wales
Cited by:
Cited – Regina v Wear Valley District Council, ex p Binks 1985
The applicant operated a hot food takeaway caravan from a market place. She had no written licence, operating under an informal arrangement with the local authority. Her rights were terminated without notice.
Held: The decision was quashed. It . .
Cited – Hampshire County Council v Beer (T/A Hammer Trout Farm); Regina (Beer) v Hampshire Farmers’ Market Ltd CA 21-Jul-2003
The applicant had been refused a licence to operate within the farmer’s market. It sought judicial review of the rejection, but the respondent argued that it was a private company not susceptible to review.
Held: The decisions of the Farmers . .
Followed – Regina v Birmingham City Council, ex parte Dredger QBD 22-Jan-1993
The local authority, operators of the market, increased the rents payable by the tenants. The tenants sought a review of the decision.
Held: The act was that of a public authority and was subject to judicial review. The market stall-holders . .
Cited – Regina on the Application of Isle of Anglesey County Council v Secretary of State for Work and Pensions Admn 30-Oct-2003
The claimant council sought re-imbursement from the Secretary of the excess housing benefit payments it had made to claimants. The system expected the Council to have made referrals of high rents to rent officers. The respondent had decided that it . .
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 – JP Whitter (Water Well Engineers) Ltd v Revenue and Customs SC 13-Jun-2018
The taxpayers registration under the Construction Industry Scheme had been withdrawn. The Court was now asked whether HMRC are obliged, or at least entitled, to take into account the impact on the taxpayer’s business of the cancellation of its . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.185799
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. The respondent had entered negotiations with several parties to secure settlements of alleged breaches of competition law. The appellants complained that another company had been given settlement agreements better than theirs.
Held: The appeal was allowed. The company had not requested the particular term offered to the other party. Domestic administrative law does not recognise a distinct principle of equal treatment. Consistency is a generally desirable objective, but not an absolute rule. The OFT applied a consistent set of legal and policy criteria. A legitimate expectation of equal treatment had been created, but said nothing as to the legal consequences of such an expectation.
Lord Mance, Deputy President, Lord Sumption, Lord Carnwath, Lord Hodge, Lord Briggs
[2018] UKSC 25, [2018] WLR(D) 300, UKSC 2016/0185, [2019] AC 96, [2018] 4 All ER 183, [2018] 5 CMLR 2, [2018] 2 WLR 1583, [2018] Bus LR 1313
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Vid Simmary, SC Vid 2018 Mar 13 am, SC Vid 2018 Mar pm, SC Vid 2018 Mar 19 am
Competition Act 1998 2(1) 31
England and Wales
Citing:
Appeal from – Gallaher Group Ltd and Another v Competition and Markets Authority CA 15-Jul-2016
Restriction or distortion of competition . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Commissioners of the European Communities v Assidoman Kraft Produncts Ab and Others ECJ 14-Sep-1999
Wood Pulp II
A decision of the Commission imposing penalties against several business concerns was challenged successfully by some of those penalised. Others who had not made the challenge applied to have the decision annulled for themselves also. The court said . .
Cited – The Office of Fair Trading v Somerfield Stores Ltd and Another CA 7-Apr-2014
The court was asked whether the Competition Appeal Tribunal was right to find that there were ‘exceptional circumstances’ justifying an extension of time for appealing a decision of the Appellant, the Office of Fair Trading. The court held that . .
Cited – Middlebrook Mushrooms Ltd, Regina (on the Application of) v Agricultural Wages Board of England and Wales Admn 18-Jun-2004
The company complained that whereas the generality of employers in agriculture were exempt from control under the minimum wage system, mushroom growers had not been exempted.
Held: The withdrawal of the exemption was irrational and . .
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 Commissioners of Inland Revenue, ex parte Unilever plc CA 1996
The Revenue had refused to exercise a discretion in favour of the taxpayer in the same form it had granted for over twenty years. The taxpayer complained that this was unfair.
Held: The new approach to late applications, brought in without any . .
Cited – Regina v The National Lottery Commission ex parte Camelot Group Plc Admn 21-Sep-2000
The Commission had considered bids tendered in open competition to run The National Lottery. Neither of the two candidates who entered bids was considered to have satisfied all the criteria necessary to be given the relevant licence. The Commission . .
Cited – Kone Bv v European Commission ECJ 24-Oct-2013
ECJ Appeal – Competition – Agreements, decisions and concerted practices – Market for the installation and maintenance of elevators and escalators – Fines – Notice on immunity from fines and reduction of fines in . .
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 – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – HTV Ltd v Price Commission CA 1976
Policies created by public bodies are a means of promoting consistency while not fettering the discretion of a public body. They allow others to know how the authority will respond to those who must deal with the authority. In maiing such policies: . .
Cited – Regina v Inland Revenue Commission ex parte Preston; In re Preston HL 1984
Duty of Fairness to taxpayer – Written Assurance
The applicant was assured by the Inland Revenue that it would not raise further inquiries on certain tax affairs if he agreed to forgo interest relief which he had claimed and to pay a certain sum in capital gains tax.
Held: Where 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 – The United Policyholders Group and Others v The Attorney General of Trinidad and Tobago PC 28-Jun-2016
(Trinidad and Tobago) The appellants, all residents of Trinidad and Tobago, held life policies issued by the Colonial Life Insurance Company (CLICO). Their claim arose out of the banking crisis in early 2009 when CLICO was in serious financial . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.615570
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 that era. It said that the respondent had resiled on a leniency agreement as to its treatment. The respondent had investigated systems of co-ordinated cover pricing in quotations for public works, and found that the volume of material was too large to process properly. It made a fast track offer intended to result in a reduced penalty.
Held: The OFT had acted unfairly in not acknowledging the difference in the position of the claimant Seeking ‘blind admissions to what are said to be infringements of the law is in breach of the principle of fairness.’ ‘Undertaking’ in competition law is an economic concept which is not equivalent to a traditional corporate entity. An undertaking may include a group of companies so long as that group of companies acts as a single economic unit.
‘the OFT must comply with the principle of equal treatment in all steps leading up to the imposition of a penalty’
Cranston J
[2009] EWHC 1875 (Admin)
Bailii
Competition Act 1998 (Office of Fair Trading’s Rules) Order 2004, Competition Act 1998
England and Wales
Citing:
Cited – Akzo Nobel and Others v Commission (Competition) ECFI 12-Dec-2007
ECJ Competition Cartels in the vitamin products sector Choline chloride (Vitamin B4) Decision finding an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area Attributability . .
Cited – Itochu v Commission (Competition) ECFI 30-Apr-2009
ECJ Competition Agreements, decisions and concerted practices – Market for video games consoles and games cartridges compatible with Nintendo games consoles – Decision finding an infringement of Article 81 EC – . .
Cited – Office of Communications and Another v Floe Telecom Ltd CA 15-Jun-2006
The Competition Appeal Tribunal had remitted a matter to the Office of Fair Trading and had set a time limit for the Commisioner to complete his investigation. The Office appealed.
Held: It was not within the CAT’s power, under either the . .
Cited – Automec SRL v Commission ECFI 18-Sep-1992
Europa Among the civil-law consequences which an infringement of the prohibition laid down in Article 85(1) of the Treaty may have, only one is expressly provided for in Article 85(2), namely the nullity of the . .
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 – Gallaher Group Ltd and Others, Regina (on The Application of) v The Competition and Markets Authority SC 16-May-2018
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.361461
EU trade mark – Opposition proceedings – Application for EU figurative mark 1st AMERICAN – Earlier EU figurative mark representing an eagle – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Audi alteram partem rule – Article 95(1) of Regulation 2017/1001 – Cross-claim
T-54/18, [2019] EUECJ T-54/18
Bailii
European
Updated: 21 July 2021; Ref: scu.665103
The court considered the need for a public authority to be candid when replying to a claim for judicial review.
Held: In the context, an omission to disclose can amount to misleading the court.
Hickinbottom, Singh, Asplin LJJ
[2018] EWCA Civ 1812, [2018] WLR(D) 497, [2019] 1 All ER 416, [2019] INLR 84, [2018] 4 WLR 123, [2019] Imm AR 86
Bailii, WLRD
England and Wales
Updated: 14 July 2021; Ref: scu.621033
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. That is squarely within Locabail paragraph 25, and as Mr Mallalieu [Counsel for the claimant] readily accepts, it is commonplace in litigation in these courts for a member of chambers to appear before a judicial tribunal comprising a former member of that person’s chambers.
I am confident that the points relied upon by the claimant would not lead cumulatively or individually a fair-minded observer to conclude that there is a real possibility of bias, and the application for a change of judge is for those reasons dismissed.’
Kerr J
[2016] EWHC 3451 (QB)
England and Wales
Cited by:
See Also – Siddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .
See Also – Siddiqui v The Chancellor, Masters and Scholars of The University of Oxford QBD 7-Feb-2018
. .
See Also – Siddiqui v University of Oxford QBD 16-Mar-2018
Post judgment issues . .
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 . .
These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.652419
The court heard an application by the police to restrain a question being put to an inquest jury. Two people had died after a police car had sought to persuade a driver to stop. He was thought to be at risk of committing suicide. The coroner sought to ask the jury whether any defect had been shown in the Police procedures.
Held: The question was not to be asked. This was an exceptional case allowing such an intervention, and, inter alia, ‘the jury would otherwise be asked to make findings that could have a substantial negative impact on PC Bickford in particular when, on the information available to me, he has had no proper opportunity to deal in evidence with the criticisms that would inevitably arise if the jury were to answer question 9 affirmatively. ‘
References: [2013] EWHC 3729 (Admin)
Links: Bailii
Judges: Stuart-Smith J
Statutes: Coroners and Justice Act 2009 5
Jurisdiction: England and Wales
Last Update: 23 September 2020; Ref: scu.518477
References: [2008] UKVAT-Excise E01127
Links: Bailii
Ratio: VDT EXCISE – seizure of vehicle and goods – whether seizure challenged – restoration refused – whether appeal against non-restoration of vehicle – whether decision not to restore goods proportionate – whether appellant entitled to raise issue of own use – whether abuse of process – No
JURISDICTION – Whether criminal charge – Whether Magna Carta and Bill of Rights 1689 applicable – Whether Appellant denied right to a fair trial – Gora considered – Appeal dismissed.
Statutes: Finance Act 1994 14(3), Tobacco Products Duty Act 1979 1(1), Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002, Alcoholic Liquor Duties Act 1979 Sch 36, Beer Regulations 1993 (SI 1993/1228) 15, Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 4, Customs and Excise Management Act 1979 49(1), European Convention on Human Rights 6
This case cites:
(This list may be incomplete)
Last Update: 14-Sep-16
Ref: 273034
References: [1952] 2 QB 329, [1952] 1 All ER 1175
Coram: Denning LJ, Somervell LJ, Romer LJ
Ratio: Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.
Denning LJ said: ‘The jurisdiction of a domestic tribunal, such as the committee of the Showmen’s Guild, must be founded on a contract, express or implied. Outside the regular courts of this country, no set of men can sit in judgment on their fellows except so far as Parliament authorises it or the parties agree to it.’ and
‘I see no reason why the powers of the court to intervene should be any less in the case of domestic tribunals. In each case it is a question of interpretation. In one of a statute, in the other of the rules, to see whether the Tribunal has observed the law. In the case of statutory tribunals, the injured party has a remedy by certiorari, and also a remedy by declaration and injunction. The remedy by certiorari does not lie to a domestic tribunal but the remedy by declaration and injunction does lie; and it can be as effective as, if not more effective than certiorari. It is, indeed, more effective, because it is not subject to the limitation that the error must appear on the face of the record.’ and
‘The committee cannot extend their jurisdiction by giving a wrong construction to the contract . . no matter how honest they may be. They have only such jurisdiction as the contract on its true interpretation confers on them, not what they think it confers. The scope of their jurisdiction is a matter of the courts.’ and
People have a right, unless expressly or impliedly debarred, to insist for free access to the courts of general jurisdiction of the state: ‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’
Romer LJ said: ‘The proper tribunals for the determination of legal disputes in this country are the courts, and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates, are fitted for the task’
This case is cited by:
(This list may be incomplete)
Last Update: 30-Jul-16
Ref: 228474
References: (1985) 60 ALJR 113, (1985) 159 CLR 550, [1985] HCA 81
Links: Austlii
Coram: Gibbs CJ, Mason, Wilson, Brennan, Deane JJ
Ratio:(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 . .’
This case is cited by:
(This list may be incomplete)
Last Update: 13-Jul-16
Ref: 222098
References: 187 ALR 612, [2002] HCA 17
Links: Austlii
Coram: Gaudron ACJ, McHugh, Kirby, Hayne, Callinan JJ
Ratio:(High Court of Australia) Trade and commerce – Damages – Equitable contribution – Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act – Whether solicitor who gave negligent advice should contribute to the loss suffered by his client as a consequence of another’s misrepresentation which loss could have been avoided by careful advice by the solicitor – Whether equitable maxims prevent requirement of contribution.
Equity – Equitable contribution – Scope of – Requirement of co-ordinate liability – Whether solicitor who gave negligent advice should contribute to loss suffered by client as a consequence of another’s representation where the loss could have been avoided by careful advice by the solicitor.
Contribution – Equitable contribution – Scope of and availability – Co-ordinate liability – Requirements of – Whether compatible with the obligations imposed by Trade Practices Act 1974 (Cth) for breach of s 52 of the Act.
Words and phrases – ‘co-ordinate liability’, ‘natural justice’.
This case is cited by:
(This list may be incomplete)
Last Update: 01-Jul-16
Ref: 566220
References: [1849] EngR 576, (1849) 12 Beav 63, (1849) 50 ER 984
Links: Commonlii
Ratio: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.
This case cites:
(This list may be incomplete)
This case is cited by:
(This list may be incomplete)
Last Update: 17-Jun-16
Ref: 298881
References: (1994) 181 CLR 41, (1994) 122 ALR 41, (1994) 68 ALJR 582
Links: Austlii
Coram: Mason C.J. and McHugh J
(Australia) The test of whether a bias was found in a member of court because of personal links is whether such links give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that there might have been such a bias. As to the test laid down in Gough: ‘In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done. Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality. The test of `reasonable likelihood’ or `real danger’ of bias tends to emphasise the court’s view of the facts. In that context, the trial judge’s acceptance of explanations becomes of primary importance. Those two tests tend to place inadequate emphasis on the public perception of the irregular incident.
We do not think that it is possible to reconcile the decision in Gough with the decisions of this Court. In Gough, the House of Lords specifically rejected the reasonable suspicion test and the cases and judgments which had applied it in favour of a modified version of the reasonable likelihood test. In Watson, faced with the same conflict in the cases between the two tests, this Court preferred the reasonable suspicion or apprehension test. That test has been applied in this Court on no less than eight subsequent occasions. In the light of the decisions of this Court which hold that the reasonable apprehension or suspicion test is the correct test for determining a case of alleged bias against a judge, it is not possible to use the `real danger’ test as the general test for bias without rejecting the authority of those decisions.
‘Moreover, nothing in the two speeches in the House of Lords in Gough contains any new insight that makes us think that we should re-examine a principle and a line of cases to which this Court has consistently adhered for the last eighteen years. On the contrary, there is a strong reason why we should continue to prefer the reasoning in our own cases to that of the House of Lords. In Gough, the House of Lords rejected the need to take account of the public perception of an incident which raises an issue of bias except in the case of a pecuniary interest. Behind this reasoning is the assumption that public confidence in the administration of justice will be maintained because the public will accept the conclusions of the judge. But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the `lay observer’, the `fair-minded observer’, the `fair-minded, informed lay observer’, `fair-minded people’, the `reasonable or fair-minded observer’, the `parties or the public’, and the `reasonable person’ abound in the decisions of this Court and other courts in this country. They indicate that it is the court’s view of the public’s view, not the court’s own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J. pointed out in Vakauta (1989) 167 C.L.R. at p.585 in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge’s opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge’s view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge’s findings.’
This case cites:
(This list may be incomplete)
This case is cited by:
(This list may be incomplete)
Last Update: 29-Feb-16 Ref: 183297
References: [1968] RVR 490, [1968] EWCA Civ 5, [1968] 3 All ER 304, [1968] 3 WLR 694, (1968) 19 P & CR 856, [1969] 1 QB 577
Links: Bailii
Coram: Lord Denning MR, Danckwerts LJ, Edmund Davies LJ
Tenants of apartments asked the Rent Officer to fix the fair rents. On appeal, the rents were then set at a rate lower even than they had requested. The rents would serve as a guide for other local rents. The landlords now complained that the chairman of the Rent Assessment Committee had been assisting his own father in negotiating a rent for such a local property, and had represented other tenants. They complained of bias.
Held: He should not have sat. It was accepted that he had had no pecuniary interest himself, and had acted scrupulously. It was a question of whether there was any appearance of bias.
Lord Denning MR considered the test for apparent bias, and said: ‘The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.’
Statutes: Rent Act 1965
This case is cited by:
References: [2012] UKUT B31 (TCC), FS/2010/0039
Links: Bailii
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
References: (2000) 201 CLR 488, [2000] 74 ALJR 1380, [2000] 174 ALR 655, [2000] HCA 48
Links: Austlii
Coram: Kirby J
(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 that such an observer will adopt a balanced approach. ‘A reasonable member of the public is neither complacent nor unduly sensitive or suspicious.’
This case is cited by:
References: (1983) 151 CLR 288, (1983) 47 ALR 45, (1983) 57 ALJR 420
Coram: Mason(1), Murphy(1), Brennan(1), Deane(1) and Dawson(1) JJ.
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 later an applicant for admission to the roll as a barrister, had provided $10,000 as cash surety for S, a defendant in criminal proceedings, who was then granted bail but absconded. The cash surety was duly forfeited. When B applied to be admitted as a barrister, the Admission Board rejected her application on the basis that she knew full well that the $10,000 surety was S’ money and not her own and could not therefore be used as surety. She appealed to the New South Wales Court of Appeal which heard evidence and concluded that B had not told the truth. Her case was that she had been lent the money by a Ms A and that she had been unaware that Ms A had herself obtained the money with the help of Livesey (S’ barrister) who had then transported the cash from Victoria to Sydney and visited S in jail before Ms A supposedly visited Ms B and offered to lend her the money. In circumstances where both Livesey and Ms A ‘well knew where the money had come from’, Moffitt P found it impossible to believe Ms B did not. When a subsequent application was made to disbar Livesey, he found that both Moffitt P and Reynolds JA were members of the tribunal hearing his case. He applied for them to recuse themselves but they refused and he was struck off the roll.
Held: ‘a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and sufficient issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.’
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References: [1981] 1 All ER 1211
Coram: Tudor Evans J
The plaintiff prisoner had been transferred from ordinary prison to a special control unit which had been established at the prison as a means of containing and controlling prisoners who were considered to be troublemakers and inducing them to realise that it was in their own interest to improve their behaviour. He complained that he had not had a fair opportnity to challenge the decision to transfer him.
Held: The decision to transfer the plaintiff to the control unit was an administrative and non-punitive decision taken to relieve the prison system. There is a distinction between disciplinary offences and transfers between status in the need for procedures. In relation to prison regimes that whatever the mischief the authorities aimed to prevent or punish, there was an ‘irreducible minimum, judged by contemporary standards of public morality’ below which standards of treatment should not fall. Tudor Evans J said: ‘it is well established that it is inappropriate to grant declarations which are academic and of no practical value. ‘
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References: [2005] 1 WLR 3019
Coram: Colman J, Clark, Nathan
(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 hear the barrister’s appeal included N, who was also a member of the Bar’s Professional Conduct and Complaints Committee. That Committee was responsible for prosecuting allegations of misconduct, although N had not been involved in prosecuting the current case. The appellant barrister objected to N’s participation: ‘Ms N would be a judge in her own cause. This would also be a situation of apparent bias for, although it was accepted that she had taken no part in the particular decision of the PCCC to prosecute the Appellant and that there was no actual bias on her part, there was nevertheless a real apprehension or danger or possibility or suspicion of bias by reason of her membership of the PCCC.’
Held: The objection succeeded. N was obliged to recuse herself both on common law principles and in order to secure compliance with ECHR article 6. The decision was rendered under the doctrine that no one must be a judge in his own cause, rendering it unnecessary to consider whether the doctrine of apparent bias was also an impediment to Ms Nathan’s participation. However, the judgment expressed the firm view that the doctrine of apparent bias did also require Ms Nathan’s recusal.
‘The decision by the PCCC to institute proceedings against a barrister thus imposes upon the PCCC as agent for the Bar Council a duty to prosecute that person and, consistently with the applicable procedure, to present the case against the barrister in a manner designed to procure conviction. Whereas it is undoubtedly true that the proceedings in which the charges are prosecuted must be fairly and justly conducted, those representing the Bar Council have a duty as its agents to procure conviction or in the case of appeals before Visitors to defeat an appeal. They do not have the function of a neutral amicus. Their interest is conviction or dismissal of appeals . .
In considering whether a lay representative on a Visitors Panel shares the interest of the PCCC, of which that person is a member, in the appeal being dismissed, an analysis of the quality of that particular member’s ability to maintain objectivity is nothing to the point. Nobody called in question Lord Hoffmann’s personal ability to be objective and impartial. Nor, in our judgment, does the fact that the purpose of including lay representatives on the PCCC and as members of the Visitors panel, have the effect of insulating such persons from having the appearance of sharing the interest of the PCCC as a prosecutor. Lord Hoffmann’s judicial oath could provide no such insulation. Nor do we find that a lay representative’s non-participation in meetings relating to the prosecution in question, cuts off that person from the responsibility which, as a member of the PCCC, that lay representative bears together with its other members for taking forward and facilitating the prosecution. Lord Hoffmann was not a decision-taker at either Amnesty International or AICL with regard to participation in the proceedings . .
Accordingly, the perception of impartiality is to be based on that which is open to view and not on facts which would be hidden from an outside fair-minded observer.
If therefore one assumes that the scope of the hypothetical fair-minded observer’s knowledge is confined to the Code of Conduct of the Bar, the Disciplinary Tribunal Regulations, the Complaints Rules and the Hearings before the Visitors Rules and does not extend to the methods of selection of the members of the PCCC or, except in so far as they should not have attended the relevant meeting of the PCCC, the Visitors panels or to the attendance records of lay representatives at meetings of the PCCC, we consider that even taking account of the high calibre of lay representatives generally and of their function in representing the public interest, there would be a perception to the fair-minded observer of a real possibility of subconscious lack of impartiality by reason of exposure to influence by such prosecuting policies as might exist amongst PCCC members generally.’
Statutes: European Convention on Human Rights 6
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References: [1863] EngR 424, (1863) 14 CB NS 180, (1863) 143 ER 414
Links: Commonlii
Coram: Erie CJ, Willes J, Byles J
Where a land-owner owner had failed to give proper notice to the Board, the Board had, under the 1855 Act, power to demolish any building he had erected and recover the cost from him. The plaintiff said that the Board had used that power without 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.
Held: The claim succeeded. Erie CJ said 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. This rule 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.’ and ‘I apprehend that a tribunal which is by law invested with power to affect the property of one Her Majesty’s subjects is bound to give such subject an opportunity of being heard before it proceeds, and that rule is of universal application an founded upon the plainest principles of justice.’
Byles J said that ‘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.’
Statutes: Metropolis Local Management Act 1855
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References: [1836] EngR 1128, (1836) 7 Car & P 650, (1836) 173 ER 284 (C)
Links: Commonlii
Coram: Lord Denman CJ
Though he may not, in legal strictness be bound to take down more than is material to prove the felony, yet since the passing of the Prisoner’s Counsel Bill, giving prisoners the right to a copy of the depositions against them, the magistrate ought to return all that was said by the witnesses with respect to the charge, as the object of the Legislature was to enable prisoners to know what they have to answer on their trial.