Even though the judge’s behaviour could give rise to apparent bias against counsel of the defendant, the Court of Appeal in Harb, decided that the High Court judge’s behaviour did not give rise to apparent bias – giving two arguments for their decision. This case comment will examine these arguments, eventually concluding that they are ultimately unconvincing. While it can be assumed that the aim of the judgement is to protect judges from frivolous and unsubstantiated claims, the judgment risks going too far and undermining public confidence in the judicial system. These arguments should be reconsidered to recognise that in some circumstances, a judge’s behaviour towards counsel should be seen as apparent bias against the parties.
Keywords: Harb v Prince Abdul Aziz, Apparent Bias, Bias against Counsel
The England and Wales Court of Appeal (Civil Division) in Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz2 decided that
…the objective and fair-minded observer…would conclude that there was a real possibility that the judge was biased against all members of…Chambers, at least for a short period of time…[but] the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of…Chambers.3
Harb is the latest contribution to the state of the law in England and Wales regarding apparent judicial bias against counsel that is unrelated to the parties. The Court of Appeal reached this decision on two grounds as discussed below.
2. Apparent Bias
Public confidence in decision-making bodies, such as national courts, is contingent on the integrity of these systems;4 the right to a fair trial (as described in multiple national and international instruments5) requires access to an ‘independent and impartial tribunal’6, with a biased tribunal producing a ‘double evil’: an evil against the party, whose human rights are being violated, and against society at large when public confidence in that decision-making system is compromised. Consequently, there is a need for clear and sensible rules on whether a tribunal is, or has been, biased, however, proving that a judge was influenced by, for example, a financial stake in the outcome of a case is impossible without access to their private thoughts and records. For this reason, English Courts have developed a rule for ‘apparent’ bias.
Such a rule for apparent bias originates from the 1924 case of R v Sussex Justices, ex p McCarthy.7 The Defendant, McCarthy, had caused a traffic accident where he collided with another vehicle. Police proceedings were initiated against McCarthy in the Magistrates court for driving in a manner dangerous to the public. The Complainant, also initiated civil proceedings against McCarthy for damages. The issue at large was that the Clerk in the criminal hearing for the Defendant was a member of the law firm representing the Complainant in civil proceedings. The clerk joined the magistrates when they retired to make their decision, and even though protested that his advice was not consulted upon, the Defendant was nevertheless convicted. On appeal, the conviction was quashed on the grounds that the Clerk, considering his connection to the case, should not have been present when the Judges were making their decision. Even though the judges made their conclusion without consulting the Clerk in question,8 Lord Hewart held that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’9, quashing the conviction on the grounds of apparent bias. The rule has evolved since then and the modern test for apparent bias in English law is found in the 2002 case of Porter v McGill: ‘the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’.10
3. Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz: Facts
Peter Smith J, the judge in Harb, decided that the parties did have an enforceable agreement (as the Claimant alleged), finding the Defendant liable. The Defendant appealed on five grounds, and under the fifth ground of the Appeal, the Defendant in Harb argued that the judge ‘was apparently biased against the [Defendant]’.11 This comment focuses on that issue.
The allegation of apparent bias stemmed from a letter, sent by Peter Smith J, to one of the heads of Blackstone Chambers – the Chambers of Lord Pannick QC, Mr. Ian Mill QC, and Ms. Shaheed Fatima QC, all of whom represented the defendant in Harb.
Lord Pannick QC wrote an article for The Times in September 2015, after the Harb hearing, but before the judge handed down his judgment criticising the judge’s controversial12 behaviour in the previous case of Emerald Supplies Ltd v British Airways13. The Article concluded:
Litigants are entitled to a better service than this. The reputation of our legal system is damaged by such behaviour. The Lord Chief Justice should consider whether action to address Mr Justice Peter Smith’s injudicious conduct has, like his luggage, been delayed for too long.14
In December 2015, after the Harb judgment was handed down, Peter Smith J wrote a letter to one of the heads of Blackstone Chambers. Calling Lord Pannick’s article ‘outrageous’, and stating that the article ‘has been extremely damaging to Blackstone Chambers within the Chancery Division’, concluding that: ‘I do not wish to be associated with Chambers that have people like Pannick in it.’15 In their appeal, the Defendant argued that ‘the fair-minded observer would consider that there was a real possibility that the final judgment was influenced by the article.’16
4. Judgement of the Court of Appeal
The Court of Appeal found that there were ‘serious’ deficiencies in the trial judge’s decision, remitting the case to the High Court for re-trial.17 In light of this, the Court of Appeal, seen no need to determine whether apparent bias existed or not. Although it did comment on the issue given the weight of the allegation, it found no apparent bias,18 concluding that the Porter v Magill test was not satisfied for the following two reasons.
First, the Court was prepared to assume that the ‘informed and fair-minded observer’ would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least temporarily.19 The same observer wrote that the Court would not conclude ‘without more’20 that there was a real possibility this bias would affect the judge’s determination of the issues in this case.
The Court of Appeal supported this conclusion with two points. The first was that the ‘fair-minded and informed observer’ is not to be confused with the litigant – as the litigant ‘lacks the objectivity which is the hallmark of the fair-minded observer’21, and that ‘[most] litigants are likely to oppose anything that they perceive might imperil their prospects of success’.22 The Court illustrated this point using the case of Helow v Secretary of State for the Home Department23, where a Palestinian woman had her case refused by Lord Ordinary. Lord Ordinary was a member of the International Association of Jewish Lawyers and Jurists, whose journal had published ‘a number of extremely pro-Israeli articles’.24 The House of Lords dismissed the woman’s appeal for apparent bias. The House examined Lord Ordinary’s relationship with the Association taking into account the fact that ‘the judge was able to discount material she had read, reaching an impartial decision according to the law’.25 While the applicant, in that case, could feel that there was an appearance of bias, based on the applicant’s position and status, the ‘objective and fair-minded observer’ would not conclude that there was apparent bias.
The second point given by the Court was that ‘even if a judge is irritated by or shows hostility towards an advocate’, it does not mean that there is a real possibility for the judge’s approach towards the parties to be affected. 26 Judges would not let their feelings about counsel affect their determination of a case as they are expected to follow their judicial oath.27 The Court seems to argue that there is a distinction between bias toward counsel and bias toward parties, and judges are expected to maintain that distinction by virtue of their judicial oath.
The Court gave a further reason why the Appeal on apparent bias should fail, where Peter Smith J gave a provisional view that the Claimant should be successful, and handed over a draft judgement before the article was published. After that, the judge stated that any amendments he made were ‘not material’.28 The Court of Appeal found it was ‘fanciful to suppose’29 that the judge made major changes to his assessment of the evidence simply as a reaction to the Article. The ‘informed and fair-minded observer’, therefore, would not conclude that there was a real possibility of bias in the assessment of the evidence
First, the Court made a distinction between the opinion of the litigant and that of the informed and fair-minded observer, noting that the fair-minded observer does not share the concerns of the litigant. Such a problem with this approach is that it makes it difficult to see what would satisfy the informed and fair-minded observer. Some litigants may indeed have objectively well-founded concerns. Surely, in those situations, the informed and fair-minded observer would have to share the concerns of the litigant.
The Court used Helow to illustrate this point. But the Lord Ordinary in Helow was the member of an Association. She had not committed herself to the ‘highly partisan’ views presented in the publication of the Association or by the President of the Association – she had not even shown that she knew of these views.30 Consequently, in that case, the House of Lords decided that the judge’s membership alone was insufficient to make her biased. On the other hand, the judgements of both Lord Mance and Lord Rodger agreed that a judge expressing comments similar to those of the President of the Association would show an appearance of bias to the fair-minded and informed observer.31
Peter Smith J, having personally drafted and sent the letter in Harb, showed clear bias against Blackstone Chambers, and it could be argued that, compared to Helow, his behaviour is very much different to the behaviour of Lord Ordinary in that case – who had not written or expressed any opinions, and closer to the behaviour of the President of the Association, who had gone on record expressing strong views on the subject. Taking this into consideration, Helow did not demonstrate that the litigant’s concern may not be objective, as the Court of Appeal seeks to show. On the contrary, the contrast between Helow and Harb goes to show that litigants may have objective concerns that could be shared by the informed and fair-minded observer.
Second, the Court provided no sources for the claim that hostility towards an advocate does not affect his or her approach to the parties. The opinion was that a judge will be fair to the parties, irrespective of their biases towards counsel because they have taken a judicial oath. However, as mentioned by Lord Walker in Helow, the informed and fair-minded observer ‘would be tending towards complacency if he treated the fact of having taken the judicial oath as a panacea’.32
Moreover, this reasoning divorces the party from their counsel. This distinction is untenable, as counsel is there to represent the interests of the parties. For example, it is clear that there is an appearance of bias when a judge or judicial assistant is also a partner in the firm acting against the defendant in another case (as was the case in McCarthy).
Third, the reasoning of the court that it was ‘rather fanciful’ and ‘unrealistic’ to suggest that the judge would make major changes to his judgment because of the article seem to suggest that the test for apparent bias is one of likelihood. However, the test talks of a real possibility of bias. Debating whether an action is likely or not, as the words ‘fanciful’ and ‘unrealistic’ seem to suggest, risks undermining the principle behind the apparent bias rule that justice must be ‘seen to be done’. The Court of Appeal conceded that the judge ‘could have amended his draft judgement after reading the Article.’33 Following McCarthy and Porter, if the judge could have done so, this should satisfy the test; whether he, in fact, did so should not be a consideration.
These are some of the objections that suggest this ruling may prove an unwelcome precedent in the future. Of course, considering that the Court felt it was ‘unnecessary’ to actually determine the issue, it could be argued that the ruling on apparent bias forms part of the obiter dictum of the case, and as such is not binding. It does, however, retain its ‘persuasive’ status, and the objections noted here should be taken into account in future cases.
After Harb, the current state of the law on apparent bias of a judge against counsel is uncertain. The Court decided that hostility or aggression towards counsel by a judge is, by itself, insufficient to show an appearance of bias. This decision is sensible in practice: judges should be able to perform their everyday duties without constant fear of being accused of bias.
On the other hand, there should be a line where, if a judge is hostile or aggressive enough towards counsel, the ‘fair-minded and objective observer’ would find a real possibility of bias. While the Court of Appeal did not recognise such an exception, the ‘public confidence’ element of apparent bias dictates it, as justice should be ‘seen to be done’. There is a need for further research to find specific instances where this line might lie. For example, the Supreme Court of New Zealand found that the fact that a judge owed a substantial amount of money to counsel in a shared business venture was sufficient to show apparent bias.34 For the time being, it can only be said that Peter Smith J’s letter, though ‘shocking … and disgraceful,’35 as the Court of Appeal wrote, was not explicit enough as to cross the line into apparent bias.
- LLM candidate, University of Leicester; Copy Editor, Legal Issues Journal. ↩︎
-  EWCA Civ 556. ↩︎
- Ibid,  (Lord Dyson) (emphasis in original). ↩︎
- Mark Elliot, Robert Thomas, Public Law (OUP 2014) 464. ↩︎
- Including inter alia the European Convention on Human Rights (Article 6) and the International Covenant on Civil and Political Rights (‘ICCPR’) (Article 14). ↩︎
- Article 14 ICCPR. ↩︎
-  1 K.B. 256. ↩︎
- Ibid, 259 (Lord Hewart CJ). ↩︎
- Ibid, (emphasis added). ↩︎
- Porter v Magill  2 AC 357  (Lord Hope). ↩︎
- Harb, . ↩︎
- ‘High Court judge under investigation over British Airways luggage rant’ (21 September 2015) The Telegraph <http://www.telegraph.co.uk/news/uknews/law-and-order/11879204/High-Court-judge-under-investigation-over-British-Airways-luggage-rant.html> accessed 20 June 2016. ↩︎
-  EWHC 2201 (Ch). ↩︎
- David Pannick, ‘A case about luggage with a great deal of judicial baggage’ (3 September 2015) The Times <http://www.thetimes.co.uk/tto/law/columnists/article4545584.ece> accessed 20 June 2016. ↩︎
- Harb, . ↩︎
- Ibid, . ↩︎
- Ibid, . ↩︎
- Ibid, . ↩︎
- Ibid, . ↩︎
- Ibid, (emphasis in original). ↩︎
- Ibid, . ↩︎
- Ibid ↩︎
-  UKHL 62. ↩︎
- Harb . ↩︎
- Ibid, . ↩︎
- Ibid, . ↩︎
- Ibid, . ↩︎
- Ibid,  ↩︎
- Ibid ↩︎
- Helow  (Lord Mance). ↩︎
- Ibid,  (Lord Rodger),  (Lord Mance). ↩︎
- Ibid,  (Lord Walker). ↩︎
- Harb . ↩︎
- Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No2)  NZSC 122, 1 NZLR 76 (SC). ↩︎
- Harb . ↩︎