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

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...