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Ecclesiastical Case Reports
Locabail (UK) Limited v Bayfield Properties Limited and related appeals
(Court of Appeal: Lord Bingham of Cornhill CJ, Lord Woolf MR, Sir Richard Scott V-C, November 1999)
Judicial disqualification - guidelines
The test for the disqualification of a judge (which term embraced every decision maker, whether judge, lay justice or juror) was whether 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 with favour or disfavour the case of a party to the issue under consideration. It was accepted that this was a departure from other decisions which are more closely in harmony with the jurisprudence of the European Court of Human Rights which favours the ‘reasonable suspicion’ test although the application of the two tests would lead to the same outcome in the majority of cases. It was held to be dangerous and futile to attempt to define or list the factors which may give rise to a real danger of bias, as everything would depend on the facts which may include the nature of the issue to be decided.
The court could not conceive of circumstances in which an objection could be soundly based on: the religion, ethnic or national origin, gender, age, class, means, sexual orientation, social or educational or service or employment background or history, nor that of any members 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 extra curricular utterances (whether in text books, 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 engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers. A real danger of bias might well be thought to arise if there were any personal friendship or animosity between the judge and any member of the public involved in the case, particularly if the credibility of that individual were an issue to be decided by the judge, or if the judge had rejected that person’s evidence at a previous hearing, or if the judge had expressed his views in such an extreme and unbalanced view as to throw doubt on his ability to try the issue objectively.
All the appeals were rejected save one, where the recorder had expressed markedly pro-claimant views in published articles. The court concluded, with misgivings, that a lay observer with knowledge of the facts could have concluded that the recorder might unconsciously have leant in favour of the claimant in resolving factual issues between the parties.
[JG]
Note: For a full report see [2000] 2 WLR 870. Note also that the same test applies in respect of arbitrators. See AT&T Corporation and another v Saudi Cable Company (2000) Times 23 May. By way of example of in the ecclesiastical field, an argument that it was improper for the chancellor and counsel for the petitioners both to come from the Temple was rejected by the Court of Appeal in R v Exeter Consistory Court ex parte Cornish (1999) 5 Ecc LJ 212.
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