Tag: Natural Justice

Lawal v Northern Spirit Limited: HL 19 Jun 2003

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

Judges:

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

Citations:

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

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .
Approved – 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 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 – Belilos v Switzerland ECHR 29-Apr-1988
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (validity of declaration); Violation of Art. 6-1; Costs and expenses award – domestic proceedings; Costs and expenses award – . .
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 – Wettstein v Switzerland ECHR 21-Dec-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Costs and expenses partial award – Convention proceedings; Costs and expenses partial award – national . .
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 . .
See Also – Lawal v Northern Spirit Ltd CA 19-Feb-2004
. .
See Also – Lawal v Northern Spirit Ltd EAT 15-Feb-1999
The appellant wished to pursue an appeal against the striking out of his claim, and objected that contrary to the Rules, a member of the board who had heard the pre-hearing review had also sat on the full hearing.
Held: The appeal should be . .
See Also – Lawal v Northern Spirit Ltd EAT 6-Oct-1999
The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
Held: There was no real possibility of bias from this scenario. . .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2001
. .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal. . .
See Also – Lawal v Northern Spirit Ltd CA 15-Jan-2002
Application for leave to appeal . .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2002
. .
Cited – Lawal v Northern Spirit Ltd CA 30-Oct-2002
. .

Cited by:

Appealed to – 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 – 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 – 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 . .
See Also – Lawal v Northern Spirit Ltd CA 19-Feb-2004
. .
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 . .
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 – 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 – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Mousa, Regina (on The Application of) v Secretary of State for Defence and Another CA 22-Nov-2011
The claimant sought a public inquiry into allegations of systematic ill treatment by UK soldiers in Iraq. He now appealed against refusal of an inquiry, the court having found it permissible for the Secretary of Styate to await the outcome of . .
Cited – JL, Regina (On the Application of) v Secretary Of State for Justice Admn 7-Oct-2009
. .
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.

Employment, Human Rights, Legal Professions, Natural Justice

Updated: 20 December 2022; Ref: scu.183695

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

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

Judges:

Moore-Bick LJ, Bean J

Citations:

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

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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 – 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 – 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 . .
Cited – Regina v Central Criminal Court Ex Parte Bright; Regina v Same, Ex Parte Rusbridger QBD 21-Jul-2000
An order was made for a journalist to disclose to the police material disclosed to him in connection with a prosecution under the Official Secrets Act. The journalist appealed the order, on the basis that it was in effect an order that he . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Police, Media, Magistrates, Human Rights, Natural Justice

Updated: 04 December 2022; Ref: scu.459730

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

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

Citations:

Times 16-Mar-2000

Jurisdiction:

England and Wales

Natural Justice

Updated: 30 November 2022; Ref: scu.89160

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

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

Judges:

Sir Donald Nicholls VC, Stuart-Smith LJ

Citations:

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

Statutes:

Supreme Court of Judicature Act 1873 16

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Legal Professions, Natural Justice

Updated: 27 November 2022; Ref: scu.542700

Krombach v Bamberski: ECFI 30 Mar 2000

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

Citations:

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

Links:

Bailii

Statutes:

1968 Brussels Convention

Jurisdiction:

European

Cited by:

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

Natural Justice

Updated: 19 November 2022; Ref: scu.82848

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

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

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Litigation Practice, Natural Justice

Updated: 11 November 2022; Ref: scu.80111

Regina v K (DT): CACD 25 Nov 1992

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

Judges:

Lord Taylor of Gosforth LCJ, Potts J, Judge J

Citations:

Times 08-Dec-1992

Jurisdiction:

England and Wales

Criminal Practice, Natural Justice

Updated: 25 October 2022; Ref: scu.87027

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

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

Judges:

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

Citations:

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

Links:

Bailii

Statutes:

Immigtaion Act 1971 21

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Judicial Review, Immigration, Natural Justice

Updated: 29 September 2022; Ref: scu.180545

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

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

Judges:

Lord Morris of Borth-y-Gest

Citations:

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

Links:

Bailii

Cited by:

Cited – 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. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Natural Justice

Updated: 20 September 2022; Ref: scu.445074

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

(New Zealand)

Judges:

Viscount Dilhorne

Citations:

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

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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.
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 20 September 2022; Ref: scu.445107

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

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

Citations:

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

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

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 – Mitchell v WT Grant Company 13-May-1974
(Supreme Court of the USA) Stewart J said: ‘A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the . .
Cited – Planned Parenthood of Southeastern Pennsylvania v Casey 29-Jun-1992
(Supreme Court of the USA) The Court discussed the grounds upon which it would depart from precedent and why it would not overrule its equally controversial decision on abortion in Roe v. Wade.
Held: ‘no judicial system could do society’s work . .

Cited by:

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

Criminal Sentencing, Natural Justice, Commonwealth, Constitutional

Updated: 25 July 2022; Ref: scu.159423

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

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

Judges:

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

Citations:

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

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

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.

Crime, Natural Justice, Human Rights

Updated: 05 July 2022; Ref: scu.238742

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

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

Citations:

[1997] UKSSCSC CCS – 12682 – 1996

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Child Support, Natural Justice

Updated: 11 June 2022; Ref: scu.197458

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

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

Judges:

Mr Justice Richards

Citations:

[2004] EWHC 779 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 . .
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 – Island Farm Development Ltd, Regina (on the Application of) v Bridgend County Borough Council Admn 25-Aug-2006
The claimant applied for a review of a decision by the respondent council not to sell it land.
Held: The challenge failed. The councillors had acted in accordance with advice given to them by officers, and ‘the committee was concerned only to . .
Lists of cited by and citing cases may be incomplete.

Planning, Local Government, Natural Justice

Updated: 10 June 2022; Ref: scu.195492

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

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

Judges:

Lord Justice Ward, Lord Justice Tuckey and Lord Justice Clarke

Citations:

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

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – 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 – 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.

Litigation Practice, Natural Justice

Updated: 06 June 2022; Ref: scu.174708

Nwabueze v General Medical Council: PC 6 Apr 2000

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

Judges:

Lord Hope of Craighead

Citations:

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

Links:

Bailii, PC, PC

Statutes:

Medical Act 1983, European Convention on Human Rights 8

Citing:

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 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 – 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. . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights, Natural Justice

Updated: 01 June 2022; Ref: scu.159404

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

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

Judges:

Lord Woolf MR, Judge LJ, Collins J

Citations:

[2000] EWCA Crim 86

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Cited by:

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

Crime, Natural Justice, Human Rights

Updated: 31 May 2022; Ref: scu.158736

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

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

Judges:

Swinton Thomas, Waller, Chadwick LJJ

Citations:

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

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Company, Natural Justice

Updated: 30 May 2022; Ref: scu.144422

Hoffmann-La Roche v Commission: ECJ 13 Feb 1979

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

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

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

Citations:

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

Links:

Bailii

Cited by:

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

European, Commercial, Natural Justice

Updated: 21 May 2022; Ref: scu.132487

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

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

Citations:

Times 02-Feb-2001

Jurisdiction:

England and Wales

Natural Justice, Litigation Practice, Human Rights

Updated: 20 May 2022; Ref: scu.89548

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 found no causal connection beween the treatment and the offence.
Held: There is no over-riding principle of law that reasons must be given for a decision in disciplinary decisions, but fairness will often require them to be given. Does ‘fairness require in this case that reasons should have been given both as to why the Court reached the conclusion that there was no causal connection and why it decided that the sentence of imprisonment was required rather than some lesser sentence which would not have had the same dire consequences for the Applicant? The answer to that question must be in the affirmative. Are there public interest reasons why reasons should not be required? The only public interest reasons . . . advanced relied upon drawing analogies with other judicial bodies. I accept . . . submissions . . . that the examples which he gave are not analogous.’

Judges:

Lord Bingham of Cornhill LCJ, Hooper J

Citations:

Times 17-Dec-1997, [1997] EWHC Admin 1136

Links:

Bailii

Statutes:

Army Act 1955 70, Armed Forces Act 1996, Rules of Procedure (Army) 1972 (SI 1972/316) 76(1)

Citing:

Cited – Regina v Civil Service Appeal Board, Ex parte Cunningham CA 1991
The court considered the effect of a disciplinary board failing to give reasons. The absence of any right to appeal may be a factor in deciding that reasons should be given. If it is ‘important that there should be an effective means of detecting . .
Cited – Regina v Guppy and Another CACD 8-Mar-1994
Court of Appeal (Criminal Division) may hear (but not require) evidence in person from an appellant. . .
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 – 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 – 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 – Regina v Mayor, Commonalty and Citizens of the City of London, ex parte Matson CA 18-Aug-1995
The court considered the need to give reasons for the election of Aldermen. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Natural Justice, Armed Forces

Updated: 19 May 2022; Ref: scu.87364

Case LXXXVIII 21 E 4, 1 Attaint, Challenge, Judgment: 1220

In an attaint, it is a principal challenge that one of the petty jury is a tenant to one of the grand jury : for if a petty jury be convicted in the attaint, it will be a great prejudice to the seigniory ; for his houses shall be pulled down, and his meadows plowed. The statute of 23 H 8, cap. 3, for attaint, does not takae away the attaint at common law ; but ordains that no attaint shall be brought except in the King’s Bench or Common Pleas at Westminster, and not eIsewhere. In other actions, a challenge that the juror is lord to the party, is only a challenge to the favour.
Juratores debent esse minus suspecti (Jurors should be free of suspicion).

Citations:

[1220] EngR 307, (1220-1623) Jenk 141, (1220) 145 ER 98 (B)

Links:

Commonlii

Natural Justice, Criminal Practice

Updated: 18 May 2022; Ref: scu.461219

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 respect of whom adverse evidence had been given about the thrust of that evidence but did not provide them with a transcript of the evidence. No cross-examination of witnesses took place.
Held: There was no obligation to furnish draft findings to those persons against whom adverse evidence had been given.
Lord Denning MR considered just what fairness demanded when writing a report which was critical of a person, saying: ‘Forbes J. [to whom the applicant had applied for an injunction to restrain the inspectors from proceeding with their investigation] thought that, in order to do what was fair, after hearing the evidence and studying the documents, the inspectors ought to come to a conclusion (which was necessarily tentative) and put the substance of that conclusion to the witness. He was led to that view by the observation of Sachs LJ in Re Pergamon Press Ltd [1970] 3 All ER at 544, [1971] Ch 405. I do not think that is right. Just think what it means. After hearing all the evidence the inspectors have to sit down and come to tentative conclusions. If these are such as to be critical of any of the witnesses, they have to re-open the inquiry, recall those witnesses, and put to them the criticisms which they are disposed to make. What will be the response of those witnesses? They will at once want to refute the tentative conclusions by calling other witnesses, or by asking for further investigations. In short, the inquiry will develop into a series of minor trials in which a witness will be accused of misconduct and seek to answer it. That would hold up the inquiry indefinitely. I do not think it is necessary. It is sufficient for the inspectors to put the points to the witnesses as and when they come in the first place. After hearing the evidence, the inspectors have to come to their conclusions. These need not be tentative in the least. They can be final and definite, ready for their report.’

Judges:

Lord Denning MR

Citations:

[1974] QB 523, [1974] 2 All ER 122

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

Updated: 15 May 2022; Ref: scu.440285

Valente v The Queen: 19 Dec 1985

Canlii Supreme Court of Canada – Courts — Charter of Rights — Independent tribunal — Provincial Court judge declined jurisdiction on ground Provincial Court (Criminal Division) not an independent tribunal — Whether or not judge of Provincial Court (Criminal Division) an independent tribunal.
Constitutional law — Charter of Rights — Courts — Independent tribunal — Jurisdiction declined on ground Provincial Court (Criminal Division) not an independent tribunal — Whether or not judge of Provincial Court (Criminal Division) an independent tribunal — Canadian Charter of Rights and Freedoms, s. 11(d) — Constitution Act, 1982, s. 52(1) — Provincial Courts Act, R.S.O. 1980, c. 398 — Public Service Act, R.S.O. 1980, c. 418 — Public Service Superannuation Act, R.S.O. 1980, c. 419 — Provincial Courts Amendment Act, 1983, 1983 (Ont.), c. 18, s. 1 — Provincial Judges and Masters Statute Law Amendment Act, 1983, 1983 (Ont.), c. 78, s. 2(2) — Courts of Justice Act, 1984, 1984 (Ont.), c. 11.

Judges:

Dickson CJ and Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ

Citations:

[1985] 2 SCR 673, 52 OR (2d) 779, 1985 CanLII 25 (SCC), 24 DLR (4th) 161, 23 CCC (3d) 193, 49 CR (3d) 97, 64 NR 1, [1985] CarswellOnt 129, [1985] SCJ No 77 (QL), 14 OAC 79, 15 WCB 326, 19 CRR 354, 37 MVR 9

Links:

Canlii

Jurisdiction:

Canada

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, Legal Professions

Updated: 04 May 2022; Ref: scu.573790

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 justice applied unless there were circumstances such as to indicate the contrary.’

Judges:

Webster J

Citations:

[1989] 2 Lloyd’s Reports 570

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

See Also – Shearson Lehman Hutton v Maclaine Watson (No 2) 1990
When a court orders repayment of a sum, with interest the rate of interest may be the commercial rate, which would normally be 1% above base rate, but is variable on appropriate evidence. . .
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 . .
Lists of cited by and citing cases may be incomplete.

Natural Justice

Updated: 30 April 2022; Ref: scu.228473

Ball v Secretary of Satte for the Environment Transport and the Regions and Another: QBD 27 Jan 2000

The applicant had appealed against an enforcement notice saying that the four year rule applied. The inspector issued his decision after the expiry of a time limit, but after the applicant had requested a further short period in which to make representations. It was held to be unfair to have proceeded without allowing more than a week for representations. B had suffered substantial prejudice for the failure to allow him to make such representations, and the decision was set aside.

Citations:

Gazette 27-Jan-2000

Jurisdiction:

England and Wales

Planning, Natural Justice, Administrative

Updated: 19 April 2022; Ref: scu.78119

Seer Technologies Ltd and another v Abbas and another: ChD 17 Feb 2000

The judge having reserved to himself an enquiry as to damages, the party applied ex parte to another judge to allow the case to be taken out of the judge’s list on the grounds that he was Jewish, and had shown himself to be biased in earlier court hearings. The application was refused since it was inconceivable that a proper objection could be based on the religion, ethnic or national origin, gender, age, class or sexual orientation of the judge.

Citations:

Gazette 17-Feb-2000

Jurisdiction:

England and Wales

Natural Justice

Updated: 13 April 2022; Ref: scu.89159

Regina v Craven: CACD 12 Apr 2001

In appropriate cases, a defect in the trial which made that trial unfair, could be remedied on appeal by that court considering all the evidence available to it. It was recognised that this would trespass on the responsibilities of the jury, but if the court considered that, in the light of all the evidence including evidence previously excluded, the verdict was correct, then the court should let the decision stand. The defects in this case were not sufficient to justify the verdict being set aside, and DNA evidence which had been obtained subsequently only confirmed it.

Citations:

Gazette 12-Apr-2001

Statutes:

Criminal Appeal Act 1968

Criminal Practice, Natural Justice

Updated: 10 April 2022; Ref: scu.88427

Regina v RAF General Court-Martial and Another, ex parte Wright: QBD 1 Jul 1999

It is not an abuse of process for the same officer to make recommendations to higher officers on whether charges should be referred to higher authority or dismissed, and also eventually to make the actual decision on whether a prosecution should proceed. The dual role of such officers did not offend against natural justice.

Citations:

Times 01-Jul-1999

Natural Justice, Armed Forces, Criminal Practice

Updated: 09 April 2022; Ref: scu.85451

Regina v Governors of Dunraven School, Ex Parte B (A Child): QBD 24 Sep 1999

The school investigated allegations of theft and expelled the child. The independent appela panel rejected the appeal. The child’s parents sought a judicial review because of the way the investigation had been handled.
Held: A school enquiring into allegations of dishonesty by a pupil and which lead to the child’s expulsion, had a duty to conduct such an enquiry with a high standard of fairness. The child should have been interviewed alone. Nevertheless, it was inappropriate to judge such actions by reference to the principles or rules which would apply to a police investigation under PACE. The allegations had been investigated and the conclusions drawn could be justified on the facts ascertained.

Judges:

Nigel Pleming QC

Citations:

Times 10-Nov-1999

Citing:

Appealed to – Regina v Governors of Dunraven School Ex Parte B CA 21-Dec-1999
Three pupils were excluded after a finding of theft. On appeal the second child to be heard was not told what had been said by the first to be heard. The first was allowed back into the school, but not the applicant.
Held: The Act showed that . .
From Leave – Regina v Governors of Dunraven School, Ex Parte B (A Child) Admn 24-May-1999
Application for leave to bring judicial review. . .

Cited by:

Appeal from – Regina v Governors of Dunraven School Ex Parte B CA 21-Dec-1999
Three pupils were excluded after a finding of theft. On appeal the second child to be heard was not told what had been said by the first to be heard. The first was allowed back into the school, but not the applicant.
Held: The Act showed that . .
Full Hearing – Regina v Governors of Dunraven School, Ex Parte B (A Child) Admn 24-May-1999
Application for leave to bring judicial review. . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Education

Updated: 09 April 2022; Ref: scu.85287

Regina v Chief Constable of Merseyside, Ex Parte Bennion: QBD 18 Jul 2000

A senior officer had begun a claim against the police officer alleging sex discrimination. She complained that when disciplinary proceedings were commenced against her, the person making the decision would be the Chief Constable, and that his decision there would affect the other proceedings. Even though the Chief Constable had come into post after the events giving rise to the claim, he was being sued in a sufficiently personal capacity to make it a breach of natural justice to hear the disciplinary proceedings.

Citations:

Times 18-Jul-2000, Gazette 27-Jul-2000

Cited by:

Appeal from – Regina v Chief Constable of Merseyside Police, ex parte Carol Ann Bennion CA 4-May-2001
The claimant sought a judicial review against a Chief Constable against whose force she had made complaints of sex discrimination and victimisation, not to remit disciplinary proceedings against her under regulation 14 of the 1985 Regulations to . .
Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Employment, Police

Updated: 09 April 2022; Ref: scu.85181

Regina v Criminal Injuries Compensation Authority, Ex Parte Leatherland; similar: QBD 12 Oct 2000

The practice of withholding the reasons for a decision until the day of an appeal which had come to be adopted was unfair and bad administration. The Tribunal should give proper reasons for its decision, together with the gist of any evidence which they had taken into account in coming to that decision. Such a system had caused unnecessary expense, and caused litigation rather than prevented it.

Citations:

Times 12-Oct-2000, [2001] ACD 76

Cited by:

Cited – Regina on Application of M v Criminal Injuries Compensation Appeals Panel Admn 31-Aug-2001
The complainant had suffered repeated acts of sexual abuse as a child including acts of penetration. She sought compensation under the scheme, but was initially refused on the basis that it was not a crime of violence, then later awarded pounds . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Personal Injury, Administrative

Updated: 09 April 2022; Ref: scu.85208

Almazeedi v Penner and Another: PC 26 Feb 2018

Cayman Islands – challenge to the independence of a judge sitting in the Financial Services Division of the Grand Court of the Cayman Islands. The challenge is made solely on the ground of an alleged lack of independence due to ‘apparent bias’, that is on the basis that the ‘fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’

Judges:

Lord Mance, Lord Wilson, Lord Sumption, Lord Hughes, Lord Lloyd-Jones

Citations:

[2018] UKPC 3

Links:

Bailii

Jurisdiction:

Commonwealth

Natural Justice

Updated: 05 April 2022; Ref: scu.605689

Badica and Kardiam v Council: ECFI 20 Jul 2017

(Judgment) Common foreign and security policy – Restrictive measures taken against certain persons and entities with regard to the situation in the Central African Republic – Freezing of funds – Initial registration decision – List of persons and entities to which the freeze applies Funds and economic resources – Inclusion of the names of the applicants – Implementation of a UN resolution – Obligation to state reasons – Rights of the defense – Presumption of innocence – Manifest error of assessment

Citations:

ECLI:EU:T:2017:532, [2017] EUECJ T-619/15

Links:

Bailii

Jurisdiction:

European

International, Natural Justice

Updated: 27 March 2022; Ref: scu.590466

Financial Conduct Authority v Macris: SC 22 Mar 2017

The claimant had complained that the appellant Authority had made public a penalty imposed on a former employer but implicating him without he being first given an opportunity to make representations.

Judges:

Lord Neuberger, President, Lord Mance, Lord Wilson, Lord Sumption, Lord Hodge

Citations:

[2017] UKSC 19, [2017] Bus LR 64, [2017] 1 WLR 1095, UKSC 2015/0143

Links:

Bailii, SC, SC Summary, SC Summary Video

Statutes:

Financial Services and Markets Act 2000

Jurisdiction:

England and Wales

Citing:

At UTTC – Macris v The Financial Conduct Authority UTTC 10-Apr-2014
FINANCIAL SERVICES – preliminary hearing – third party rights – s 393 Financial Services and Markets Act 2000 – whether applicant identified in notice – yes . .
At CA – The Financial Conduct Authority v Macris CA 19-May-2015
Appeal by the Authority against a decision by the Upper Tribunal (Tax and Chancery Chamber) deciding, as a preliminary issue determined in accordance with Rule 5(3)(e) of the Tribunal Procedure (Upper Tribunal) Rules 2008, that the respondent to . .
Cited – in re Pergamon Press Ltd CA 1971
The court was asked as to the duties of inspectors appointed under the 1948 Act. Sachs LJ said: ‘The inspectors’ function is in essence to conduct an investigation designed to discover whether there are facts which may result in others taking . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Natural Justice

Updated: 23 March 2022; Ref: scu.581026

Broughton Brickwork Ltd v F Parkinson Ltd: TCC 21 Oct 2014

‘application for summary judgment to enforce a decision of an adjudicator, Mr Paul Greenwood, made on 4th September 2014, in which he decided that the defendant should pay the claimant andpound;96,000 odd including interest. The defendant’s case is that there should be no enforcement of that decision because there was a real and a serious breach of natural justice. In short, it is submitted by the defendant’s counsel, Miss Day QC, that this is a case where something has genuinely gone seriously wrong, and where what has occurred was not rough justice, which she accepts cannot prevent a decision being enforced, but no justice at all. The defendant’s first specific complaint is that the adjudicator decided a particular point which was of considerable importance to the determination of the dispute on a basis which was not the way in which the parties had argued it, and without first giving the parties the opportunity to comment. Its second complaint is that in deciding that point the adjudicator failed, through inadvertence, to address a particular document which the defendant had placed before him and which, had he considered it, would have led to his reaching a different conclusion in the defendant’s favour, as indeed says the defendant the adjudicator has subsequently acknowledged.’

Stephen Davies HHJ
[2014] EWHC 4525 (TCC)
Bailii

Arbitration, Natural Justice

Updated: 22 January 2022; Ref: scu.569070

Regina v Army Board of Defence Council, ex parte Anderson: QBD 1991

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 service complaint had been dismissed and in his application for judicial review he challenged the procedure which the Panel had adopted including not holding an oral hearing.
Held:
Taylor LJ said: ‘The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing: see Local Government Board v. Arlidge [1915] A.C. 120, 132-133; Reg. v. Race Relations Board, Ex parte Selvarajan [1975] 1 W.L.R. 1686, 1694B-D and Reg. v. Immigration Appeal Tribunal, Ex parte Jones (Ross) [1988] 1 W.L.R. 477, 481B-G. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available written evidence. This does not mean that whenever there is a conflict of evidence in the statements taken, an oral hearing must be held to resolve it. Sometimes such a conflict can be resolved merely by the inherent unlikelihood of one version or the other. Sometimes the conflict is not central to the issue for determination and would not justify an oral hearing. Even when such a hearing is necessary, it may only require one or two witnesses to be called and cross-examined.’

Taylor LJ, Morland J
[1992] QB 169, [1991] 3 All ER 375, [1991] 3 WLR 42
England and Wales
Citing:
Cited – 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 . .
Cited – Regina v Race Relations Board, Ex parte Selvarajan CA 1975
Lord Denning MR said: ‘In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion . . In all these cases it has been held that the investigating body is under a duty to act . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Discrimination, Natural Justice

Leading Case

Updated: 12 January 2022; Ref: scu.539816

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 that brother to commit burglaries. The juror had sworn an affidavit that she had not not known of the connection.
Held: The appeal was dismissed. The House set out the test for bias. The test for bias in a juror where apparent bias was alleged, was whether there was a real danger that the defendant had been denied a fair trial.
Lord Woolf said: ‘It must be remembered that except in the rare case where actual bias is alleged, the court is not concerned to investigate whether or not bias has been established. Whether it is a judge, a member of the jury, justices or their clerk, who is alleged to be biased, the courts do not regard it as being desirable or useful to inquire into the individual’s state of mind. It is not desirable because of the confidential nature of the judicial decision making process. It is not useful because the courts have long recognised that bias operates in such an insidious manner that the person alleged to be biased may be quite unconscious of its effect.
It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but seen to be done applies. When considering whether there is a real danger of injustice, the court gives effect to the maxim, but does so by examining all the material available and giving its conclusion on that material. If the court having done so is satisfied there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed. This, therefore, should have been the result in the Sussex Justices case if Lord Hewart C.J’s remarks are to be taken at face value and are to be treated as a finding, and not merely an assumption, that there was no danger of the justices’ decision being contaminated by the possible bias of the clerk.’
Lord Goff of Chieveley said that was meant by bias was extraneous prejudice and predilection: ‘it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him; ‘
‘ A layman might well wonder why the function of a court in cases such as these should not simply be to conduct an inquiry into the question whether the tribunal was in fact biased. After all it is alleged that, for example, a justice or a juryman was biased, i.e. that he was motivated by a desire unfairly to favour one side or to disfavour the other. Why does the court not simply decide whether that was in fact the case? The answer, as always, is that it is more complicated than that. First of all, there are difficulties about exploring the actual state of mind of a justice or juryman. In the case of both, such an inquiry has been thought to be undesirable: and in the case of the juryman in particular, there has long been an inhibition against, so to speak, entering the jury room and finding out what any particular juryman actually thought at the time of decision. But there is also the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias.’ and ‘ the approach of the law has been (save on the very rare occasion where actual bias is proved) to look at the relevant circumstances and to consider whether there is such a degree of possibility of bias that the decision in question should not be allowed to stand.’

Lord Goff of Chieveley, Lord Woolf
Independent 26-May-1993, Times 24-May-1993, [1993] AC 646, [1993] 2 All ER 727, [1993] UKHL 1, [1993] 97 Cr App R 188, [1993] 2 WLR 883
Bailii
England and Wales
Citing:
Appeal from – Regina v Gough CACD 2-Jun-1992
A juror had lived next door to a party to the burglary alleged against the defendant. The defendant alleged bias. The juror said she had been unaware of the connection.
Held: The question of whether there had been bias in a jury trial is . .
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 – Regina v Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers’ Association 1960
Even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by a bias. Devlin LJ said: ‘Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and . .
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 – Regina v Spencer; Regina v Smails HL 24-Jul-1986
The defendants were nurses employed at Rampton secure hospital accused of assaults on patients. The witnesses against them had been inmates. They complained that the judge had failed to direct the jurors about the dangers of relying upon their . .

Cited by:
Cited – Regina v Francois Pierre Marcellin Thoron CACD 30-Jul-2001
The appellant had been convicted that as a haulage contractor he had conspired with his drivers to cause them to drive beyond the permitted hours, and in other ways contrary to their safety. He argued it was a misuse of the Act to ally it with the . .
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 . .
Modified – 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 – 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 . .
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 Stipendiary Magistrate for Norfolk ex parte Dean Taylor Admn 1-Jul-1997
The prosecutor applied ex parte to the magistrate for an order that he need not disclose certain material to the defendant. Though the hearing was inter partes, the content of the protected material was not shown to the defendant’s solciitor. . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
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 . .
Doubted – 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 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 – Regina v Oke CACD 25-Jun-1997
The defendant said that the husband of a woman juror had sat in court while submissions were made about evidence later excluded form the jury. The evidence was of previous convictions and a similar prosecution against the defendant.
Held: Some . .
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 . .
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 – 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 – Regina v Haringey Justices Employment ex parte Julian Branco Admn 24-Oct-1997
The defendant sought judicial review of his conviction saying that the chairwoman knew his mother and was antipathetic to her, and had shown bias in the trial.
Held: There had been confusion, but no real risk of bias. The review was refused. . .
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 – 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 – Regina v Stone CACD 14-Feb-2001
The defendant appealed against his conviction in 1998 of murder based on a confession said to have been made to a fellow prisoner on remand. A witness supporting that confession said after the trial that he had lied under police pressure. The appeal . .
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 – Abegaze v IPR Technical Development Ltd EAT 2-Sep-1998
The court was asked whether the proposed appeal raised an arguable point of law. The claimant had requested witness orders, but the tribunal had refused them. Five of the six requested attended as defentant’s witnesses.
Held: The Industrial . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Natural Justice

Updated: 11 December 2021; Ref: scu.183296

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.

Times 18-May-1999
England and Wales
Cited by:
Appeal from – 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.

Legal Professions, Natural Justice

Updated: 11 December 2021; Ref: scu.83131

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 able to examine all the relevant material and satisfy itself that there was no danger [possibility] of the alleged bias having in fact caused injustice, the impugned decision will be allowed to stand’ and ‘the court’s task is to ascertain the relevant circumstances and ask itself whether, having regard to these circumstances, there was a real danger of bias on the part of HM Coroner for Inner West London in the sense that he might have unfairly regarded with disfavour the cases of the applicants as parties to an issue under consideration by him.’
Simon Brown LJ analysed the case of R v Gough: ‘From R v. Gough I derive the following propositions: (1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts. (2) It necessarily follows that the factual position may appear quite differently as between the time when the challenge is launched and the time when it comes to be decided by the court. What may appear at the leave stage to be a strong case of justice `not manifestly and undoubtedly being seen to be done’, may, following the court’s investigation, nevertheless fail. Or, of course, although perhaps less probably, the case may have become stronger. (3) In reaching its conclusion the court `personifies the reasonable man’. (4) The question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By ‘real’ is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility. (5) Injustice will have occurred as a result of bias `if the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him’. I take `unfairly regarded with disfavour’ to mean `was pre-disposed or prejudiced against one party’s case for reasons unconnected with the merits of the issue’. (6) A decision-maker may have unfairly regarded with disfavour one party’s case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased. (7) It will be seen, therefore, that by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias.’

Simon Brown LJ, Sir Thomas Bingham MR
Independent 17-Jun-1994, Times 16-Jun-1994, [1994] 4 All ER 139
England and Wales
Citing:
Explained – 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 . .
Explained – 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 – Regina v Coroner for Western District of Sussex Ex Parte Homberg Roberts and Mannerss QBD 27-Jan-1994
A Coroner’s enquires should be as to ‘how’ the death arose, and not into all the circumstances contributing to the death.
Simon Brown LJ said: ‘It is clear that the coroner’s over-riding duty is to inquire ‘how’ the deceased came by his death . .

Cited by:
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 – Regina v Stipendiary Magistrate for Norfolk ex parte Dean Taylor Admn 1-Jul-1997
The prosecutor applied ex parte to the magistrate for an order that he need not disclose certain material to the defendant. Though the hearing was inter partes, the content of the protected material was not shown to the defendant’s solciitor. . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
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 – 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 – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
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 – Jones v HM Coroner for The Southern District of Greater London and Another Admn 28-Apr-2010
The mother of the deceased asked for a new inquest, saying that there had been insufficient enquiry. He was an adult suffering Asperger’s syndrome and other difficulties, but had sought and been given excess prescriptions of fentanyl a drug to . .
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.

Coroners, Natural Justice

Updated: 11 December 2021; Ref: scu.86950

Parmar and others (trading as Ace Knitwear) v Woods (Inspector of Taxes): ChD 30 May 2002

The taxpayers had been represented by a professional accountant, but incompetently. They sought leave to renew the appeal on the basis that the representation had been poor.
Held: The chartered accountant had a statutory right of audience. His fitness and expertise was warranted and assumed. No breach of natural justice had occurred. His incompetence in fact was a matter for his professional body, and a renewed hearing, save in one aspect, was not allowed.

Lightman J
Gazette 11-Jul-2002
England and Wales
Citing:
Appeal from – Parmar (T/A Ace Knitwear) v Inspector of Taxes SCIT 14-Aug-2001
INCOME TAX – partnership – whether a loss was incurred in the year ending on 31 December 1991 – no – whether the disposal value of machinery and plant destroyed by fire in 1991 exceeded the capital expenditure incurred in the provision of that . .

Lists of cited by and citing cases may be incomplete.

Taxes Management, Natural Justice

Updated: 11 December 2021; Ref: scu.174320

Hart v Relentless Records Ltd, Relentless Music Publishing Ltd, Media Village PR Ltd: ChD 4 Oct 2002

The judge had informally met counsel in the corridor outside court, and advised him of the need to settle the case. The client asked the judge to recuse himself, having compromised his independence and impartiality.
Held: Such meetings were a proper part of litigation, and did much to assist avoidance of increased costs. In deciding whether to recuse himself a judge must ask whether a fair, informed and reasonable observer would consider there to be a real risk of bias. Such an observer would not so judge, and he declined to recuse himself.

The Hon Mr Justice Jacob
Times 08-Oct-2002, [2002] EWHC 1984 (Ch)
Bailii
England and Wales
Cited by:
Cited – Steadman-Byrne v Amjad and others CA 27-Jun-2007
In the course of a personal injury trial, the judge asked counsel to his room, where he said that having been conviced that the claimants were not lying, the defence had no prospect of success, and complained that ‘Insurance companies are trying to . .
Cited – IA311012013 AIT 28-Aug-2014
The appelant had sought indefinite leave to remain. He now cmplained that the judge at the fisrt tire tribunal had made a remark at the outset suggesting that he had a closed mind or had already made up his mind. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Natural Justice

Updated: 06 December 2021; Ref: scu.177382

Fairmount Investments Ltd v Secretary of State for the Environment: HL 1976

A local authority had made a compulsory purchase order which was challenged and an inquiry was held. The inspector, after the conclusion of the hearing, conducted his own inspection of the premises as a result of which he concluded that the foundations were defective. His decision letter revealed the fact that this was a ground upon which he came to the conclusion that the compulsory purchase order should stand.
Held: Viscount Dilhorne said: ‘It was on account of his belief as to the inadequacy of the foundations that the inspector, taking that into account with the other defects, ruled out rehabilitation. So it appears that the inspector attached great weight to a factor which formed no part of the council’s case, of which the respondents had not been given notice and with which they had been given no opportunity of dealing. In my opinion there is great substance in the respondents’ complaints. Just as it would have been contrary to natural justice if the Secretary of State in making his decision had taken into account evidence received by him after an inquiry without an objector having an opportunity to deal with it, so here in my view it was contrary to natural justice for his decision to confirm the order to be based to a very considerable extent on an opinion, which investigation might have shown to be erroneous, that the foundations were not taken down deep enough, and an opinion, which also might have been shown to be erroneous, that the inadequacy of the foundations showed that rehabilitation was impractical.’

Viscount Dilhorne
[1976] 2 EGLR 18, [1976] 1 WLR 1255, [1976] 2 All ER 865
England and Wales
Cited by:
Cited – Edward Ware New Homes Ltd v Secretary of State for the Environment, Transport and the Regions Admn 19-Dec-2001
The applicant sought planning permission to pull down some buildings formerly used as a mushroom farm. The application was refused on the ground that it would remain available for industrial use. The applicant contended it would be low grade use. . .
Cited – Jory v Secretary of State for Transport, Local Government and the Regions and another Admn 12-Nov-2002
The claimant took part in a planning appeal, objecting to a development. After the appeal, the inspector agreed different conditions, but without allowing the claimant to be involved. He appealed.
Held: The inspector was obliged to deal . .
Cited – Todd, Bradley v The Secretary of State for Environment Food and Rural Affairs Admn 22-Jun-2004
Application was made to quash an order modifying the Council’s definitive map of public rights of way.
Held: Before the Secretary of State could confirm a Council’s modification of a right of way shown on the definitive map, where that . .
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 . .

Lists of cited by and citing cases may be incomplete.

Natural Justice

Leading Case

Updated: 05 December 2021; Ref: scu.183164

Regina v Governors of Dunraven School Ex Parte B: CA 21 Dec 1999

Three pupils were excluded after a finding of theft. On appeal the second child to be heard was not told what had been said by the first to be heard. The first was allowed back into the school, but not the applicant.
Held: The Act showed that the child should be given a fair hearing, for which it was necessary to know the case against him. Neither the principles nor details of the PACE rules applied, but they remained a useful test of fairness and improper pressure. The procedure used was deemed unfair because the school appeared to have placed reliance upon what had been said by the first boy, and that therefore the second had not been allowed to hear the basis for the decision, and to answer allegations which might have been made.

Morritt LJ, Brooke LJ, Sedley LJ
Gazette 27-Jan-2000, Times 03-Feb-2000, [2000] ELR 156
England and Wales
Citing:
Appeal from – Regina v Governors of Dunraven School, Ex Parte B (A Child) QBD 24-Sep-1999
The school investigated allegations of theft and expelled the child. The independent appela panel rejected the appeal. The child’s parents sought a judicial review because of the way the investigation had been handled.
Held: A school enquiring . .

Cited by:
Cited – Regina (on the Application of Edwards) v Head Teacher of Whitton High School and Others Admn 2-Nov-2001
The applicant’s son had been excluded from the respondent’s school. She sought judicial review of the decision in that insufficient reasons had been given, and the hearing unfair at the Independent Appeal Tribunal. The son was subject to a statement . .
Appealed to – Regina v Governors of Dunraven School, Ex Parte B (A Child) QBD 24-Sep-1999
The school investigated allegations of theft and expelled the child. The independent appela panel rejected the appeal. The child’s parents sought a judicial review because of the way the investigation had been handled.
Held: A school enquiring . .

Lists of cited by and citing cases may be incomplete.

Education, Natural Justice

Updated: 17 November 2021; Ref: scu.85285

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 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

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

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

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

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

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

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

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. . .

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 – 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 – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .

Lists of cited by and citing cases may be incomplete.

Adoption, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.228360

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

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

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

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

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 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

Davidson v Revenue and Customs; Excs 25 Jul 2008

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:

  • Cited – Bowles v Bank of England KBD ([1913] 1 Ch 57, [1913] 82 LJ Ch 124, [1913] 108 LT 95, [1913] 29 TLR 42, [1913] 57 Sol Jo 43, [1913] 6 Tax Cas 136)
    The House of Commons Ways and means committee resolved to assent to the imposition of income tax at the required rate for the next year.
    Held: Such a resolution was inadequate to authorise the Crown to levy the tax by its deduction from the . .
  • Cited – Weller v Revenue & Customs VDT (Bailii, [2008] UKVAT-Excise E01110, [2008] V & DR 221)
    VDT EXCISE – RESTORATION – payment when restoration not possible – amount of payment – goods purchased on cross-channel ferry – ferry operator used simplified scheme under Article 7(9), EU Council Directive 92/12 . .
  • Cited – Gascoyne v Customs and Excise and Another CA (Bailii, [2004] EWCA Civ 1162, [2005] 2 WLR 222, [2005] Ch 215)
    The Commissioners had found what they considered to be an excess of dutiable goods brought into the country by the tax payer, and had forfeited the car. The court considered the effect of the Gora case.
    Held: The difficult statements in Gora . .
  • Cited – Commissioners of Customs & Excise v Dickinson ChD (Bailii, [2003] EWHC 2358 (Ch), Times 03-Dec-03, Gazette 22-Jan-04, [2004] 1 WLR 1160, [2003] All ER (D) 315)
    The applicant had returned to England with a quantity of goods which the Customs and Excise deemed were not for his personal use. His car was seized, but ordered to be restored by the VAT and Duties Tribunal.
    Held: There was now a two track . .

(This list may be incomplete)

Last Update: 14-Sep-16
Ref: 273034

Lee v Showmen’s Guild of Great Britain: CA 1952

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:

  • Approved – Faramus v Film Artistes’ Association HL ([1964] AC 925, [1964] 1 All ER 25)
    Parties to a contract may be bound to act in it according to the rules of natural justice. . .
  • Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA (Bailii, [2005] EWCA Civ 856, [2005] BCLC 379)
    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 – Regina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali CA (Times 15-May-93, Independent 13-Sep-93, Bailii, [1993] EWCA Civ 36)
    The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
    Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected . .
  • Cited – Foster v McNicol and Another QBD (Bailii, [2016] EWHC 1966 (QB))
    The claimant challenged a decision of the National executice Committee of the Labour Party to allow its present Leader to stand in the election challenging his position without the need for him to submit first the otherwise standard nominations from . .

(This list may be incomplete)

Last Update: 30-Jul-16
Ref: 228474

Kioa v West; 18 Dec 1985

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

Burke v LFOT Pty Ltd; 18 Apr 2002

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

The Grand Junction Canal Company v Dimes; 1 May 1849

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:

  • Appeal from – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
    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 . .

(This list may be incomplete)
This case is cited by:

  • See Also – The Grand Junction Canal Company -v- Dimes ([1850] EngR 243, Commonlii, (1850) 2 H & Tw 92, (1850) 47 ER 1610, [1849] EngR 682, Commonlii, (1849) 17 Sim 38, (1849) 60 ER 1041)
    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 ([1850] EngR 242, Commonlii, (1850) 2 Mac & G 285, (1850) 42 ER 110)
    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 ([1850] EngR 499 (A), Commonlii, (1850) 5 Exch 311)
    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 ([1850] EngR 769, Commonlii, (1850) 3 Mac & G 4, (1850) 42 ER 162)
    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 ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    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 ([1852] EngR 793, Commonlii, (1852) 3 HLC 794, (1852) 10 ER 315)
    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 . .

(This list may be incomplete)

Last Update: 17-Jun-16
Ref: 298881

Webb and Hay v The Queen: 1994

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:

  • Cited – Regina -v- Gough (Robert) HL (Independent 26-May-93, Times 24-May-93, [1993] AC 646, [1993] 2 All ER 727, Bailii, [1993] UKHL 1, [1993] 97 Cr App R 188, [1993] 2 WLR 883)
    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 . .

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)
Last Update: 29-Feb-16 Ref: 183297

Jeffery v FSA; UTTC 7 Dec 2012

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

Johnson v Johnson; 7 Sep 2000

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:

  • Cited – Lawal -v- Northern Spirit Limited HL (House of Lords, Gazette 17-Jul-03, Bailii, [2003] UKHL 35, [2003] ICR 856, [2004] 1 All ER 187)
    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 – PD, Regina (on the Application of) -v- West Midlands and North West Mental Health Review Tribunal Admn (Bailii, [2003] EWHC 2469 (Admin), Times 31-Oct-03, Gazette 02-Jan-04)
    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 – Gillies -v- Secretary of State for Work and Pensions HL (Bailii, [2006] UKHL 2, Times 30-Jan-06, [2006] 1 WLR 1781, 2006 SC (HL) 71)
    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 – Helow -v- Secretary of State for the Home Department and Another HL (Bailii, [2008] UKHL 62, HL, Times, [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)
    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 . .

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

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:

  • Cited – Regina -v- Abdroikof, Regina -v- Green; Regina -v- Williamson HL (Bailii, [2007] UKHL 37, Times 08-Nov-07, [2007] 1 WLR 2679, [2008] 1 Cr App R 21, [2008] Crim LR 134, [2008] 1 All ER 315, (2007) 151 SJLB 1365)
    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 . .

Livesey v New South Wales Bar Association; 20 May 1983

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.’
This case cites:

  • Approved – Ex Parte Lewin; In re Ward ([1964] NSWR 446, 80 WN (NSW) 1527)
    (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 . .

This case is cited by:

  • Cited – Otkritie International Investment Management and Others -v- Urumov CA (Bailii, [2014] EWCA Civ 1315)
    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 . .

Williams v Home Office (No 2); 2 Jan 1981

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. ‘
This case cites:

  • See Also – Williams -v- Home Office (No 2) ([1981] 1 All ER 1151)
    Tudor-Evans J said: ‘In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the . .
  • Cited – Merricks and Another -v- Nott-Bower CA ([1964] 1 All ER 717, [1965] 1 QB 57, [1965] 2 WLR 702)
    The plaintiff police officers had been disciplined by transfer in 1957 as a result of a report by an officer who was subsequently discredited. After their accuser was discredited they sought a declaration that the disciplinary action taken against . .

This case is cited by:

  • See Also – Williams -v- Home Office (No 2) ([1981] 1 All ER 1151)
    Tudor-Evans J said: ‘In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the . .
  • Cited – Home Office -v- Hariette Harman HL ([1983] 1 AC 280, [1982] 2 WLR 338, [1982] 1 All ER 532, (1982) 126 SJ 136)
    The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
    Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
  • Cited – Mohamed, Regina (on the Application of) -v- Secretary of State for Foreign & Commonwealth Affairs (No 4) Admn (Bailii, [2009] EWHC 152 (Admin))
    In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .

Rex v Grady And Curley; 2 Dec 1836

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.

Cooper v The Board of Works For The Wandsworth Destrict; 21 Apr 1863

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
This case is cited by:

  • Cited – Bank Mellat -v- HM Treasury QBD (Bailii, [2010] EWHC 1332 (QB), WLRD, [2010] WLR (D) 148)
    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 – Lumba (WL) -v- Secretary of State for The Home Department SC (Bailii, [2011] UKSC 12, Bailii Summary, SC, UKSC 2010/0062, UKSC 2010/0063, SC Summary)
    The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    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 – Osborn -v- The Parole Board SC (Bailii, [2013] UKSC 61, [2013] 3 WLR 1020, [2014] HRLR 1, [2013] WLR(D) 374, [2014] 1 All ER 369, Bailii Summary, WLRD, UKSC 2011/0147, SC Summary, SC)
    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 . .

P v The General Council of the Bar; Re P (A Barrister); 24 Jan 2005

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
This case cites:

  • Cited – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    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 . .

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