Apparent judicial bias - a hard argument to win?

Download: 2016 PUB BC Apparent judicial bias - 24 June.pdf

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The England and Wales Court of Appeal has declined to find apparent bias despite an extraordinary case of judicial indiscretion.

The decision confirms the approach adopted by the New Zealand Supreme Court in Saxmere1 but also reflects a reluctance to uphold allegations of apparent judicial bias.

The case

Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 concerned an appeal against a judgment enforcing a contract between Prince Abdul Aziz bin Fahd, a member of the Saudi royal family, and Mrs Harb. The Prince appealed on several grounds, including the appearance of judicial bias by the Judge, Peter Smith J.

The allegation centred on a letter which Peter Smith J sent to Blackstone Chambers advising that he would no longer support it because he did not wish "to be associated with Chambers that have people like Pannick in it".

Smith had taken objection to an article by a member of the Chambers, Lord Pannick QC, which criticised Peter Smith J's "inexcusably bullying manner and threats" in an earlier unrelated case,2 in which the Judge recused himself after becoming involved in a personal dispute with the defendant, British Airways, over his own lost luggage.

The Prince's Counsel, also Blackstone members, argued that the apparent hostility toward Lord Pannick in particular and the Chambers in general would infect Peter Smith J's attitude toward the Prince himself.

The Court of Appeal rejected the claim, but remitted the matter to the High Court for re-trial on other grounds.3

The fair-minded observer

The Court's approach was in substance the same as that adopted by the New Zealand Supreme Court in Saxmere.4 The test in both cases was, broadly, "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".5

The Court found that, while Peter Smith J may have been biased (temporarily at least) against all members of Blackstone Chambers, the evidence was not sufficient to conclude 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 Blackstone Chambers".6

Indeed, the Court concluded that it was "unrealistic"7 to assume that Peter Smith J was actuated by bias against the Prince because...