UK: When Might Judicial Conduct Constitute Apparent Bias And Result In An Unfair Trial?

Last Updated: 16 November 2018
Article by Robert Hobson and Ian McDonald

Introduction

In the recent case of M&P Enterprises (London) Limited v Norfolk Square (Northern Section) Limited1, the High Court was asked to set aside a trial Judgment on the basis that, given the trial Judge's alleged bias, the process underlying the Judgment was so unfair as to render its outcome void.

The High Court dismissed the appeal and, in doing so, provided guidance as to how the English courts will assess such rare allegations of judicial misconduct and the circumstances in which the outcome of a trial will subsequently be deemed to be unfair.

Background

The facts

M&P Enterprises (London) Limited (the "Appellant") was a commercial tenant of Norfolk Square (Northern Section) Limited (the "Respondent"). At the trial, the Respondent had sought an order terminating the Appellant's tenancy agreement and preventing it from being granted a new tenancy under the Landlord and Tenant Act 1954. The trial Judge duly made an award in the terms sought by the Respondent, following which the Appellant appealed the decision.

Unusually, the Appellant did not appeal any of the specific findings but, rather, focused solely on the process underlying the Judgment which it submitted was so unfair that it should be set aside and a new trial should be held before a different Judge. In doing so, the Appellant alleged 170 instances of judicial bias, includ­ing that the trial Judge had persistently and unfairly intervened in cross-examination and had adopted a "hostile manner" in the way in which she had approached the Appellant, its counsel, expert and witnesses.

The law

Before turning to the High Court's assessment of the Appellant's appeal, it is important to set into context the overarching legal basis for the appeal. The right to a fair trial is enshrined in both Article 6 of the European Convention on Human Rights and in common law2. In turn, this includes the right to a trial conducted and made by a decision-maker free not only from actual bias but also from the appearance of bias.

Put another way, there are two types of bias: actual bias and apparent bias. Whereas actual bias arises where the Judge is a party to the litigation or has a financial or other interest in its outcome, apparent bias may be alleged where the Judge's conduct or behaviour is such that it gives rise to a suspicion that he or she is not acting impartially. It is the latter, namely apparent bias, which was relevant to the facts of this case.

The High Court's analysis

In assessing the appeal, Mr Justice Hildyard noted at the outset that there is sometimes "a fine line between robust case management and disruptive judicial interven­tion". As such, he provided a lengthy judgment exploring in some detail the key aspects of the law relating to the fairness of a trial and apparent bias. In particular, some of the most important points to note include the following:

  1. Whether a trial is conducted fairly is assessed subjectively and necessarily with the benefit of hindsight, but of course without the benefit of any input from the relevant Judge. In carrying out that subjective assessment, it is important to bear in mind that the trial Judge (while ensuring that he/she does not take on the role of an advocate) is entitled to a wide degree of latitude in conducting and overseeing proceedings.
  2. In addition to the above, there is a separate question as to whether the trial Judge has acted with apparent bias. These matters are distinct and should not be conflated. While the question of fairness is considered subjectively, the apparent bias test is based on whether a "fair-minded, informed observer" would conclude that there was a real possibility of bias. This is therefore an objective test.
  3. In light of the above, while the same factual analysis may apply to both the concepts of "unfairness" and "apparent bias", the court must assess the trial process from two "slightly different" perspectives – i.e. there is both a subjective and an objective element to the court's analysis.
  4. Finally, in considering the case of Re G (A Child)3, the High Court reiterated that the challenges of trial management may require judicial reaction without time for "refined consideration", for which generous allowance must always be made. For example, interventions during cross-examination may be necessary due to counsel's questioning or time management, and must be assessed not only quantitavely, but also qualitatively.

On the facts, and having regard to the above points, Mr Justice Hildyard held that the trial Judge's actions had largely been necessitated by the way in which the Appellant's "shapeless" case had been put forward. In particular, perhaps as a result of the fact that the Appellant had changed solicitor some four times in these proceedings alone and the legal team acting at trial was only retained a week prior to its commencement, he noted that the Appellant was poorly prepared for trial and, more specifically, this manifested itself in matters such as the Appellant's inadequate witness evidence, the late submission of its skeleton argument and its failure to answer questions directly at trial.

As such, in light of the state of the Appellant's case and the subsequent need for active judicial management during the trial, Mr Justice Hildyard held that:

  1. on a subjective analysis, considering the circumstances known to the trial Judge which were likely to have informed her behaviour and particularly given the wide latitude afforded to a Judge in overseeing a trial, the trial had not been conducted unfairly and the Appellant had not been prevented from presenting its case;
  2. although some of the trial Judge's comments and interventions were "rather too strident in their assertion", they were "not misplaced in substance" and had been required to progress the trial in an orderly and timely fashion; and
  3. as such, on a separate objective analysis, it would be clear to a fair-minded and impartial observer with knowledge of the relevant background, that the comments and interventions had been caused by the Appellant's own failures, rather than the trial Judge having pre-judged the issues or acted in a biased manner.

Conclusion

While the M&P Enterprises case turns on its specific facts and the appeal was largely rejected on the basis that the alleged 170 instances of judicial bias had been caused by the Appellant's own poor case management and preparation of the proceedings, the decision has provided a useful set of legal principles which will be considered by the courts in assessing whether a Judge's conduct was biased and resulted in an unfair trial.

As can be seen from those principles and the outcome of this case, while a Judge's actions at trial (such as constant interventions and hostile comments) may leave them open to criticism, this will not necessarily lead to the conclusion that the Judge was biased and the trial was unfair. Indeed, conversely, given the nature of the High Court's guidance, the threshold for overturning a Judgment on this ground is (unsurprisingly) high and it is likely to be only in extreme circumstances that a party will be successful in appealing a decision on the sole basis that the Judge's conduct resulted in apparent bias and the proceedings were thus unfair.

Footnotes

1 [2018] EWHC 2665 (Ch).

2 Note that the case of Lawal v Northern Spirit Limited [2003] UKHL 35 confirmed that there is no difference between the requirements in each.

3 [2015] EWCA Civ 834.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2018. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions