It is a well-established practice that members of the same chambers or firm frequently appear alongside or against each other in court. Practitioners often develop working or social relationships with advocates from other chambers or firms when appearing in the same case or at social functions.

It is also a common feature that from time to time a Judge may know an advocate appearing in front of him or her; from presiding over a previous case they appeared in, working alongside or against them as an advocate themselves or from a wider social network.

Such connections do not normally raise any legal eyebrows. Nevertheless most practitioners have had to face the questions of clients, who upon being informed that the Judge and opposing Counsel are in same chambers / have another connection, feels that this means there must be bias. We do what we can to explain that this happens frequently, of the integrity of the profession and that we have no reason to suspect foul play.

However with the rise of litigants in person, it is perhaps understandable that some may feel uncomfortable about what they perceive to be a club to which they do not belong. The recent case of Watts v Watts [2015] EWCA Civ 1297 gives some guidance from the Court of Appeal on how to approach the matter of bias.

Facts

The applicant brought a case against her brother in relation to their mother’s 2011 Will. The trial was before a part-time deputy High Court Judge who pronounced against the validity of the 2011 Will. The Judge is also a practicing barrister.

The Judge was assigned a reading day the day before trial, and upon beginning her reading, she realised that counsel for the applicant sister was her junior on a completely different and unrelated matter.

At the commencement of the trial and in the interests of transparency the parties were informed of this connection. Through his counsel, the brother made an application that the Judge should recuse herself, as her work with opposing counsel gave rise to a legitimate concern that the she would favour the sister. The sister objected to the recusal stating she did not wish to bear the expense, frustration and delay which would arise if the Judge recused herself. The Judge refused the application with reasons to follow at the end of the trial.

The relevant tests

The Judge directed herself to the correct test in relation to the appearance of bias as laid down in Porter v Magill [2001] UKHL 67, namely “whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the tribunal was biased”.

She also reminded herself of the guidance given by Lord Steyn in Lawal v Northern Spiriti Ltd [2003] UKHL 35; “public perception of the possibility of unconscious bias is the key. 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 at 509 by Kirby J when he stated that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”.

The Judge also correctly directed herself to the recent guidance in Resolution Chemicals Ltd v H.Lundbeck A/S [2013] EWCA Civ 1515.

The judge’s decision

In her reasons, the Judge went onto say that it would be obvious to an observer that in the team in which she worked with the Counsel for the sister, she had the senior role. Therefore, if there was a disparity in authority, a fair minded person would conclude that she held the authority. She was clear they held no common financial interest in the outcome of the two cases before the court, discretionary or otherwise. Furthermore, favouring counsel for the sister would not provide any advantage for either of them in terms of the other joint matter. The Judge held that she failed to believe that a fair minded observer would conclude that she would lean towards counsel for the sister simply so he could recover a fee.

The appeal

The brother appealed on the basis that the Judge had erred in her decision on the merits but also on the grounds of an appearance of bias. Briggs LJ refused permission on the merits but granted permission on the appearance of bias.

How detailed should that disclosure be

The Judge informed the court that she was leading the counsel for the sister in an unrelated matter and had been doing so for the last year but she gave no further details.

The first ground of appeal was therefore in relation to the paucity of information provided by her about her involvement with counsel for the sister. The appellant submitted that proper disclosure should be given to allow parties to object and to show there is nothing to hide. A particular criticism was that the Judge did not give the subject matter of the joint litigation. Counsel for the appellant suggested this meant there was a risk that the Judge could give a ruling in the present case that would assist in the joint case.

The Court of Appeal rejected this criticism and found that the Judge did disclose the material facts. They held that any fair minded observer would realise that the professional standards of a Judge would not allow her to do so as suggested and that if her interests as a barrister conflicted with her duty as a Judge she would recuse herself. The Court of Appeal were clear that part-time Judges are not required to disclose every piece of litigation they are involved in as a barrister, which would be required if the appellant was correct. Furthermore, the Judge owed a duty of confidentiality to her client and, therefore, was not at liberty to go further than she did unless there was a strong public interest in doing so. There was found to be no such duty.

The Court of Appeal also noted that they had asked counsel for the sister as to whether the subject matter of the joint case overlapped with the one in question. He confirmed that it did not. A pragmatic step that could perhaps have been taken at first instance.

When to disclose a connection

Lord Justice Sales hearing the case in the Court of Appel commented that the appellant being informed at the start of the trial was “the sensible thing to do. Appearances matter and it was better to have this connection, albeit limited in nature, out in the open rather than run the risk of it emerging later, after the end of the case when it might have appeared more sinister than it really was: Davidson v Scottish Minister [2004] SCLR 991 HL [19] per Lord Bingham”.

When to give decisions on a preliminary ruling

The second ground of appeal was relating to the Judge announcing her ruling at the commencement of the hearing as to recusal but only giving her reasons at the end. The appellant argued that this left him in a difficult position throughout the trial of believing that he had good grounds for objecting to the Judge, knowing she disagreed, but not knowing why. It was said this reinforced the objective impression that the Judge was acting unfairly.

The Court of Appeal were clear that it was entirely correct in the circumstances for the Judge to give her decision with reasons to follow later, so that the trial could proceed without further delay and to minimise the risk that it might have to run over and increasing costs. The test is not how a particular litigant subjectively feels but an objective one. In addition proceeding in this way was the approach adopted by the court in Resolution Chemicals.

Does it matter if one side is on a CFA

As part of the recusal application counsel for the brother pointed out that counsel for the sister was on a conditional fee arrangement (“CFA”) for this matter and therefore whether he was paid was directly linked to whether he succeeded. A central argument for recusal was that the Judge may be too generous to counsel for the sister in trying to protect him from the disappointment of losing the case due to the financial implications. It was suggested she would wish to do this to protect their working relationship.

The Court of Appeal held that a notional fair-minded informed observer would understand the professional standards applicable to a part-time Judge and member of the Bar and the severe consequences if these were deviated from. As such the notional fair-minded informed observer would understand that a part-time Judge’s approach to a case she is trying and to her relationship to other professionals would be governed by those standards. It is, therefore, far-fetched to consider a Judge would allow her ethical standards to be overruled by a wish not to upset junior counsel in a different matter.

The appeal was dismissed.