REFLECTIONS ON LAW OF BIAS

The appointment of the Lady Mayoress of London to chair the #CSAInquiry has prompted thoughts of judicial bias, and the question as to whether this can be raised agianst teh chair of an inquiry. The following chapter is taken direct from a book of mine – The Practice of Family Law: evidence and procedure (2012). It is written only in the context of family law; but it is on the subject; and contains some references which may be helpful in the context of the Home Secretary’s proposed #CSAInquiry.

 

I plan to refine what is said here in the context of what I understand to be the position on the Inquiry and the appointment of a Lord Mayor of London to chair it.

 

The word ‘recusal’ is a technical term and means that a judge must take him/herself off the case.

 

 

6       BIAS

 

1        INTRODUCTION

 

  • It has been said by the Court of Appeal that judicial impartiality is ‘the fundamental principle of justice, both at common law and under European Convention 1950 Art 6.’[1] If it is breached a judge is disqualified from hearing a case. If ‘bias’ – in the technical sense of the terms as considered below – is found then recusal must follow: it is not a matter for a discretionary case management decision.

 

  • This chapter considers first the meaning of the technical term in its two contexts: ‘actual’ bias and apparent bias (Section 2); and then looks at the factors which the judge (who is both the subject of the complaint and must adjudicate upon it) will have in mind if application is made to him/her for recusal from the case: how would a ‘fair-minded and informed observer’ look at the complaint (Section 3). The procedure for an application is considered at Section 4.

 

 

2        IMPARTIALITY: RULE AGAINST BIAS

 

Bias: ‘actual’ or ‘apparent’

 

  • In the context of court proceedings ‘bias’ is a technical, and perhaps slightly unfortunate. Lord Bingham commented on this terminology in Davidson v Scottish Minister as follows:[2]

 

‘Where a feature of this kind is present, the case is usually categorised as one of actual bias. But the expression is not a happy one, since “bias” suggests malignity or overt partiality, which is rarely present. What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge’s judgment.’

 

  • ‘Bias’ is a term which arises where a judge may be said to be unsuitable to try a case because of a personal interest (however remote) in the outcome of the case or because the judge is in some other way is, or appears to be, unable to form an independent view of the case before the court. It may arise in two ways:

 

  • ‘Actual bias’ – That the judge has, as a matter of fact, a personal interest in the outcome of the case; or
  • ‘Perceived or apparent bias’ – for example, because of an expressed point of view or because of the judge’s personal opinion of a matter in issue or a party in the proceedings.

 

  • ‘Actual’ bias gives rise to automatic disqualification by the judge or other tribunal by him/herself from continuing to deal with the case. If there is ‘apparent’ bias the judge or other tribunal must recuse him/herself if it is accepted that the judge is, or appears to be, biased; but a decision on the point is a matter for the judge’s on the facts as found by the court. The test for bias of either category is whether the ‘fair-minded and informed observer’ would conclude that there was a real possibility of bias.[3] In either case bias – in the general sense of the word – may not actually exist.

 

  • In the case of ‘actual’ bias it arises automatically on the facts of a case (eg a relationship with a party or witness in the proceedings; or where a judge owns shares in a company involved in the litigation). In the case of apparent bias it is for the court itself to decide whether the threshold has been achieved. If, as a matter of fact as found by the court, there may be an appearance of bias, recusal must follow: it is not a matter of discretion or of case management as to whether to recuse.[4]

 

Declaring the interest

 

  • If the judge knows of any relevant interest he or she must declare it tot eh parties. It will then be a matter fort eh parties themselves to decide whether the interest declared is of concern to them. If it is of concern to a party, formal application must then be made to the court. If it is a question of an interest giving rise to ‘actual bias’ the judge must recuse. If not, the judge will here the application and decide whether the possible concern s/he has mentioned is sufficient for recusal.

 

  • Once the judge has declared a possible interest a party must decide promptly whether it wishes to ask the judge to recuse; failing which they may be regarded as having waived their opportunity of so doing.[5]

 

‘Choice’ of judge

 

  • A party to proceedings cannot choose the judge who is to try his or her case; and, by much the same token, s/he cannot object to the judge who is to try his/her case save of very narrow grounds. The most notable of these is the allegation that the judge is biased. Such an allegation must be clearly made out and must be proved according to the principles outlined in this chapter.

 

  • It is the judge who is listed to try the case, or who has reserved the case to him/herself, who is responsible for trying the issue of whether or not s/he is biased. This can create its own pressures from opposite directions: on the one hand the judge must try to see the allegations as would a fair-minded and informed observer, and judge the application accordingly; and yet s/he must be wary of the possibility that the application is being used merely to eliminate a judge whom the applicant perceives to be in some way uncongenial.

 

Impartiality, independence and judicial ‘bias’

 

  • That said the importance of judicial impartiality, and – almost as importance, the public perception of judicial impartiality, cannot be overstated. For example, it has been described by the Court of Appeal as follows:[6]

 

‘[6] …. [Judicial impartiality] is the fundamental principle of justice, both at common law and under Article 6 of the European Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance.’

 

‘The fair-minded and informed observer’

 

  • The modern test as to whether judicial bias may be present, as applied to civil proceedings, is defined by Lord Hope in Porter v Magill;[7] and this test can be taken now to be the authoritative distillation of a small number of variants on a similar theme:

 

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.

 

  • The subject of the ‘fair-minded’ observer is considered in Section 3 of this Chapter.

 

(1)        Actual bias: automatic disqualification

 

  • The term ‘actual’ bias was explained by Lord Bingham in terms of what is required by the rule of law in Davidson v Scottish Minister:[8]

 

[6] The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen, or between the citizen and the state, should be independent and impartial. This means that such tribunals should be in a position to decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case. Thus a judge will be disqualified from hearing a case (whether sitting alone, or as a member of a multiple tribunal) if he or she has a personal interest which is not negligible in the outcome, or is a friend or relation of a party or a witness, or is disabled by personal experience from bringing an objective judgment to bear on the case in question. ….

 

[7] … In maintaining the confidence of the parties and the public in the integrity of the judicial process it is necessary that judicial tribunals should be independent and impartial and also that they should appear to be so. The judge must be free of any influence which could prevent the bringing of an objective judgment to bear or which could distort the judge’s judgment, and must appear to be so. Following some divergence of view between the courts of England and Wales and Scotland on the correct formulation of the correct test (see Locabail (UK) Ltd v Bayfield Properties Ltd [[9]]), the Scottish test has come to be accepted. In Porter v Magill [[10]] my noble and learned friend Lord Hope of Craighead expressed the test in terms accepted by the Second Division and by both parties to this appeal:

 

“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.”

 

  • The test of personal interest is described by Lord Bingham as one ‘which is not negligible’, in the sense that it is so trivial that it can reasonably be ignored. Beyond that the test is absolute, as explained by Lord Browne-Wilkinson in Pinochet (No 2) (where Lord Hoffman, one of the judges in the committee which had decided on a 3 to 2 majority that Senator Pinochet should be sent to Spain on a warrant requested by prosecuting authorities there):

 

The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

 

In my judgment, this case falls within the first category of case, viz where the judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias.

 

  • In such circumstances, and in the absence of any pecuniary interest in the outcome, could Lord Hoffman still be required by law to declare an interest? Lord Browne-Wilkinson answered this as follows:

 

… the question is whether in the very unusual circumstances of this case a non-pecuniary interest to achieve a particular result is sufficient to give rise to automatic disqualification and, if so, whether the fact that AICL [a company set up to fund Amnesty International] had such an interest necessarily leads to the conclusion that Lord Hoffmann, as a Director of AICL [but not a member of AI], was automatically disqualified from sitting on the appeal? My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause…. if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties. Thus in my opinion if Lord Hoffmann had been a member of AI he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to immunity…

 

Can it make any difference that, instead of being a direct member of AI, Lord Hoffmann is a Director of AICL, that is of a company which is wholly controlled by AI and is carrying on much of its work? Surely not…. If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a Director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart’s famous dictum is to be observed: it is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”[[11]])

 

(2)        Perceived or ‘real danger of’ bias

 

  • The subject of perceived bias is more difficult to deal with. This is not because judges may fail to detect their own possible bias when it is drawn to their attention.[12] It is because two particular and separate factors combine: that the judge must adjudicate on the issue of which he is the subject; and, secondly, in doing so the judge will be conscious that it is a principle of judicial administration that a party may not chose or reject his tribunal. If judges gave in too easily to every application before them for recusal it would undermine this second principle.

 

  • In Locabail (UK) Ltd v Bayfield Properties Ltd & Anor[13] a Court of Appeal consisting of the then Lord Chief Justice, the Master of the Rolls and the Vice-Chancellor, gave a judgment of the court which, at the time, was intended to deal with the question of bias. Though in later and separate decisions, in the following two years, the House of Lords had itself reviewed the subject.[14] In Locabail four cases were considered together.[15] On the subject of perceived bias and of the question of categorising types of perceived bias the court held:

 

[25] 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 of 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 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 (KFTCIC v Icori Estero SpA [[16]]).

 

  • The court continued their assessment of circumstances where perceived bias might arise. As is emphasised by the court, the list is intended to be illustrative only, and is explained as follows:

 

[25] …By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly [[17]]); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. 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 or witness to be unreliable, would not without more found a sustainable objection…. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

 

 

3        ‘FAIR-MINDED AND INFROMED’

 

The ‘fair-minded’ observer

 

  • Lord Hope, in Porter v McGill (above), coined the term the ‘fair-minded and informed observer’ and he has since returned to the same ‘relative newcomer’ in the legal lexicon in Helow v Secretary of State for the Home Department and another [18] where he further explained his use of the term as follows:[19]

 

[1] The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word “he”), she has attributes which many of us might struggle to attain to.

 

[2] The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious… Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

 

  • As already mentioned, the judge who hears the application is in the invidious position of having to be both the person complained of and the adjudicator who determines the complaint. In Hellow Lord Hope was seeking to set down one or two further guidelines in an area which in each case will be fact-specific. The main points in Hellow concerning that way in which the judge, in the guise of the informed observer, should determine the application includes the following:

 

  • The informed observer will reserve judgment and a decision until he or she has seen and fully understood both sides of the argument.

 

  • The approach to determination of the issue must be distinguished clearly from not be confused with that of the complainant: there must be a clear measure of detachment. The complainant’s assumptions can only be adopted by the observer if they ‘can be justified objectively’.

 

  • However, the observer must not be complacent if a real complaint is made out: ‘a judge must be, and must be seen to be, unbiased’.

 

‘Informed’ observer

 

  • Lord Hope then went on briefly to consider the ‘informed’ observer, stressing the main attribute of this person, as part also of the ‘fair-minded’ observer, is the extent to which this person will take the trouble to be fully informed as to the matters which are relevant to the complaint before the court:

 

[3] Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

 

  • The then are the factors which the court will have to have in mind when a judge is asked to judge him or herself as to whether any complain of bias is made out. These are not matters of law but of assessment of the facts of an individual case[20] and of application of these two sets of guidelines – or something akin to them – to those facts.

 

Test in Porter v McGill

 

  • The test in Porter v McGill (as explained in Helow[21]) is likely now to be the sole test of bias, as explained by Rix LJ in R (ota Darsho Kaur) v Institute of Legal Executives Appeal Tribunal[22]

 

[45] In these circumstances, it seems to me that by now it may be possible to see the two doctrines which remain in play in this appeal [[23]] as two strands of a single over-arching requirement: that judges should not sit or [they] should face recusal or disqualification where there is a real possibility on the objective appearances of things, assessed by the fair-minded and informed observer (a role which ultimately, when these matters are challenged, is performed by the court), that the tribunal could be biased. On that basis the two doctrines might be analytically reconciled by regarding the “automatic disqualification” test as dealing with cases where the personal interest of the judge concerned, if judged sufficient on the basis of appearances to raise the real possibility of preventing the judge bringing an objective judgment to bear, is deemed to raise a case of apparent bias. I do not think that Lord Bingham regarded the automatic disqualification rule as necessarily technical (although no doubt it could be applied in a formalistic way), but be that as it may Lord Hope showed the way to avoid formalism in Meerabux, and I note that Lord Bingham sought to avoid technicality by qualifying the disabling personal interest by the phrase “which is not negligible”.

 

 

4        PROCEDURE FOR APPLICATION FOR RECUSAL

 

Recusal application

 

  • Procedure for an application for recusal of the judge is not defined by FPR 2010 or by other court rules. Plainly it would be desirable that as much notice of any problem should be given in advance; and any communication with the court or the judge by one party must be copied by him/her to the other party (or parties). However, listing arrangements may mean that a party does not know of the judge till the day of hearing; and a judge may not know of factors which give rise to automatic recusal till the file is made available to him/her, perhaps not till the day of hearing (short cases) or often a day or two before. It may therefore often be impossible to give advance notice of concerns or of any request to recuse till the day of the hearing.

 

  • Application to recuse is to the specific judge (or member of a bench of justices) is as follows:

 

  • If a party is aware of a problem before the hearing the best course is for the advocate acting for the party concerned to write personally to the judge.[24]

 

  • Where this is not possible, application must be made on the day of hearing and as soon as the applicant for recusal becomes aware of the issue.

 

  • If the judge is aware of a possible conflict of interests he must tell the parties as soon as he is aware of this. The parties must then decide immediately whether to seek recusal; though this right may be constructively waived (see Waiver below).

 

  • Where a party becomes aware of the bias after the hearing and once a decision has been made the application is to appeal out of time (or to set aside).[25]

 

  • The disposal of any application will depend upon the point at which it is made. Where the case has not started, said the Court of Appeal in Morrison & Anor v AWG Group Ltd & Anor[26] ‘a sensible application of the precautionary principle applies’:

 

[6] …Where the hearing has not yet begun, there is also scope for the sensible application of the precautionary principle. If, as here, the court has to predict what might happen if the hearing goes ahead before the judge to whom objection is taken and to assess the real possibility of apparent bias arising, prudence naturally leans on the side of being safe rather than sorry.

 

  • Where the possibility of bias is discovered after the decision has been made (as in (4) above), then if the application is successful and, retrospectively the judge must disqualify him/herself, then the decision must be set aside either on appeal or by application to set aside.[27] This is so, whatever the category of bias.[28]

 

  • If actual bias is found, disqualification is automatic. Generally the circumstances which define such bias will be clear; though the variety of what may be termed personal interests goes beyond financial interests.[29] Cases of apparent bias will be more varied[30] than those of actual bias. However ‘if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal.’[31][32]

 

Waiver

 

  • The case which gives its name to Locabail[33] concerned an application for a solicitor, sitting as a High Court judge, to recuse himself, in circumstances where the judge had mentioned a possible interest[34] during the course of the hearing (the fifth day of a sixteen day trial – ie 28 October: see references in quotes from judgement below). The Court of Appeal rejected the application to set aside the judgment of Lawrence Collins QC sitting as a High Court, on the basis that there was in any event no real danger that the judge might be biased; but they also considered whether Mrs Emmanuel has waived her right to have a recusal application at all.

 

  • Further, they considered the question of waiver of her right to apply by Mrs Emmanuel. It was she who had ultimately applied to the judge for him to recuse himself, and it was Mrs Emmanuel’s appeal to the Court of Appeal which that court considered (with two other cases) in Locabail. Under the heading ‘Waiver’ the court considered the matter as follows:

 

[68] In our judgment, Mrs Emmanuel and her lawyers had to decide on 28 October what they wanted to do. They could have asked for time to consider the position. They could have asked the deputy judge to recuse himself and order the proceedings to be started again before another judge. They could have told the judge they had no objection to him continuing with the hearing. In the event they did nothing. In doing nothing they were treating the disclosure as being of no importance…. During [the four month period (trial and reserved judgment)] Mrs Emmanuel and her lawyers did nothing about the disclosure that had been made on 28 October. They only sprang into action and began complaining about bias after learning from the deputy judge’s judgment that Mrs Emmanuel had lost.

 

[69] …We are concerned only [on the recusal appeal] with the complaint based upon an appearance of bias allegedly produced by Herbert Smith’s involvement in the litigation against Mr Emmanuel…. Miss Williamson protests that on 28 October not enough was disclosed to put Mrs Emmanuel to her election. We disagree. The essentials of the conflict of interest case that is now relied on were to be found in the press cutting [in the court bundle]. Mrs Emmanuel wanted to have the best of both worlds. The law will not allow her to do so.

 

 

 

[1] Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6, [2006] 1 WLR 1163 per Mummery LJ at para [6]

[2] [2004] UKHL 34 at para [6]

[3] Per Lord Hope in Porter v McGill (orse McGill v Weeks) [2001] UKHL 67 at para []

[4] Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6, [2006] 1 WLR 1163 per Mummery LJ at para [6]; affirmed by Howell & Ors v Lees Millais & Ors [2007] EWCA Civ 720 at para [7]

[5] Locabail (UK) Ltd v Bayfield Properties Ltd & Anor (below); and see consideration of ‘waiver’ at 6.**

[6] Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6, [2006] 1 WLR 1163 per Mummery LJ at para [6]

[7] [2001] UKHL 67, [2001] 2 AC 357 at [103]

[8] [2004] UKHL 34

[9] [1999] EWCA Civ 3004, [2000] QB 451 at [16]

[10] [2001] UKHL 67, [2001] 2 AC 357 at [103]

[11] Rex v Sussex Justices, Ex parte McCarthy [1924] KB 256 at 259

[12] A particularly remarkable example of a judge who would not acknowledge bias which is blatant from but a few of the numerous paragraphs quoted from the exchanges before the judge in the court below is Howell & Ors v Lees Millais & Ors [2007] EWCA Civ 720

[13] [1999] EWCA Civ 3004, [2000] QB 451

[14] Pinochet (No 2) (above) and Porter v McGill (above)

[15] Locabail (above) included the case of a recorder (the only appeal allowed) who dealt with a running down claim (Timmins v Gormley, one of the cases before the court). He had admitted before trial to published anti-insurer views. The Court of Appeal said of this case: ‘[89] We have found this a difficult and anxious application to resolve. There is no suggestion of actual bias on the part of the recorder. Nor, quite rightly, is any imputation made as to his good faith. His voluntary disclosure of the matters already referred to show that he was conscious of his judicial duty. The views he expressed in the articles relied on are no doubt shared by other experienced commentators. We have, however, to ask, taking a broad common sense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leant in favour of the claimant and against the defendant in resolving the factual issues between them. Not without misgiving, we conclude that there was on the facts here a real danger of such a result. We do not think a lay observer with knowledge of the facts could have excluded that possibility, and nor can we. We accordingly grant permission to appeal on this ground, allow the defendant’s appeal and order a re-trial. We should not be thought to hold any view at all on the likely or proper outcome of any re-trial.’

[16] Court of Appeal of Paris, 28 June 1991, International Arbitration Report. Vol. 6 #8 8/91

[17] (1989) 167 CLR 568

[18] [2008] UKHL 62

[19] Paras [1] and [2]

[20] See eg Locabail (above): [25] 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.

[21] Helow v Secretary of State for the Home Department and another [2008] UKHL 62 (considered at 6.**)

[22] [2011] EWCA Civ 1168

[23] R v Bow Street Metropolitan Stipendiary Magistrates, ex parte Pinochet (No 2) [1999] UKHL 52, [2000] 1 AC 119; Porter v McGill (orse McGill v Weeks) [2001] UKHL 67

[24] This was the course adopted by counsel in Howell & Ors v Lees Millais & Ors [2007] EWCA Civ 720, a course accepted by the Court of Appeal para [15].

[25] Taylor v Lawrence [2002] EWCA Civ 90; CPR 1998 r 52.17; FPR 2010 r 30.14 (for applications to set aside or appeal in these circumstances see **.**). The application for disqualification of the judge was refused in Taylor v Lawrence

[26] [2006] EWCA Civ 6, [2006] 1 WLR 1163 at para [6] per Mummery LJ

[27] See Chapter **, especially **.** and **.**

[28] R v Bow Street Metropolitan Stipendiary Magistrates, ex parte Pinochet (No 2) [1999] UKHL 52, [2000] 1 AC 119; Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 QB 451, [1999] EWCA Civ 3004, [2000] 1 QB 451 at para [16]: The most effective protection of the right is in practice afforded by a rule which provides for the disqualification of a judge, and the setting aside of a decision, if on examination of all the relevant circumstances the court concludes that there was a real danger (or possibility) of bias.

[29] But see breadth of personal interests as defined in Pinochet (No 2) at 2.**

[30] See per Court of Appeal in Locabail at para [25] at 2.**

[31] Locabail at para [25]; cited with approval in …; and per Rix LJ in *** at para [5] sub-para (iv)

[32] Per Lord Nolan in Pinochet (No 2): ‘… in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality’

[33] Locabail (UK) Ltd v Bayfield Properties Ltd and another; Locabail (UK) Ltd and another v Waldorf Investment Corporation and others (both defendants included Barbara Hagen Emmanuel)

[34] A transcript of what the said judge said is as follows (per Locabail at paras [39] and [40]: “Judge Collins: Mr Mann and Miss Williamson, I had a quick flick through Bundle T last night and I discovered on the second page for the first time [from a press cutting in the bundle] that the firm of which I am a partner seems to have had something to do with attempting to get a bankruptcy order against Mr Emmanuel. It is the first time I have heard of it, and I had nothing whatever to do with it.” Neither Mr Mann QC for Locabail nor Miss Williamson QC for Mrs Emmanuel made any response to the disclosure made by the deputy judge. Neither asked for time to consider the position more fully. Neither asked for any additional information about the matters the deputy judge had referred to. Each side, of course, had its own copy of the press-cutting in Bundle T. Both sides were content for the hearing to continue. It did continue for a further eight days after which, as we have said, judgment was reserved and eventually given on 9 March 1999.

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