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
European Convention on Human Rights,
England and Wales
CitedDimes 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 . .
DoubtedRegina 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 . .
CitedRegina v Rand 1866
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 . .
CitedRegina 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 AlsoLocabail (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 fromLocabail (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. . .
CitedRegina 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 . .
CitedRegina 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 . .
CitedClenae 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 . .
CitedPowell 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 . .
CitedLaw 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 . .
CitedRex 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 . .
CitedVakauta 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:
CitedLodwick 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 . .
CitedDavidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
CitedAMEC Capital Projects Ltd v Whitefriars City Estates Ltd CA 28-Oct-2004
Alleged bias and procedural unfairness by an adjudicator appointed to determine a dispute in relation to a construction contract.
Held: The principles of the common law rules of natural justice and procedural fairness were two-fold. A . .
CitedBirminham 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 . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
See AlsoLocabail (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 . .
CitedIn 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 . .
CitedFlaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
CitedAWG 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 . .
CitedMorrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
CitedPort Regis School Ltd, Regina (on the Application of) v Gillingham and Shaftesbury Agricultural Society Admn 5-Apr-2006
Complaint was made that the decision of a planning committee had been biased because of the presence on the committee of two freemasons, and where the interests of another Lodge were affected.
Held: The freemasonry interests had been declared. . .
CitedLondon 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 . .
CitedArmchair 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 . .
CitedHelow 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 . .
CitedRoberts, 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 . .
CitedGarrett 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 . .
CitedTankard 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 . .
CitedVanttinen-Newton v The GEO Group UK Ltd EAT 23-Jul-2009
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 . .
CitedRegina v KS CACD 17-Nov-2009
The jury had been discharged by the judge after finding jury tampering, and he decided to continue alone. The jury had not known of the earlier convictions of others involved in the alleged conspiracy, but the judge did and he had made reference to . .
CitedMireskandari 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 . .
CitedMMI 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 . .
CitedOshungbure 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 . .
CitedOni v NHS Leicester City EAT 12-Sep-2012
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 . .
CitedO’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
CitedOtkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
CitedRoberts 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 . .
CitedHayden 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 . .
CitedAmeyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .
CitedThe 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 . .

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Human Rights, Natural Justice, Legal Professions

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Updated: 01 November 2021; Ref: scu.136005

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