M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hildyard |
| Judgment Date | 12 October 2018 |
| Neutral Citation | [2018] EWHC 2665 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CH-2017-000058 |
| Date | 12 October 2018 |
[2018] EWHC 2665 (Ch)
THE HONOURABLE Mr Justice Hildyard
Case No: CH-2017-000058
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
7 Rolls Building Fetter Lane London
EC4A 1NL
Kirk Reynolds QC and Emily Windsor (instructed by Charles Russell Speechlys LLP) for the Appellant
Caroline Shea QC (instructed by Russell-Cooke LLP) for the Respondent
Hearing dates: 1 – 2 March 2018
HTML VERSION OF JUDGMENT APPROVED
Nature of this Appeal
By this Appeal M&P Enterprises (London) Limited (the “Appellant”) seeks an order setting aside the order of HH Judge Baucher (the “Judge”) dated 9 February 2017, as varied by the order of Morgan J dated 26 April 2017, on the basis that the Judge's conduct of the Trial was unfair and/or would have led a fair-minded and informed observer to conclude that there was a real possibility of bias on the Judge's part. If successful on appeal the Appellant seeks a new trial before a different judge, with a view to vindicating its alleged right to be granted new tenancies of four valuable buildings used as a hotel which it has occupied as tenant for its business for many years. Though a re-trial is always a last resort, unfairness or the appearance of bias at the original trial may mandate it.
The appeal, whilst obviously fact-specific in that its outcome depends upon a detailed examination of the conduct of the trial in question, raises an interesting and more general question as to the parameters of the sometimes fine line between robust case management and disruptive judicial intervention such as to give rise to the risk of giving the appearance of bias.
In this judgment, I first explain, briefly, the context to this appeal. I then turn to the authorities on apparent bias, before addressing the background to and the trial of the issues resulting in the appealed 9 February 2017 order.
The context of this appeal
The Appellant (the Defendant at the trial) is the tenant of Norfolk Square (Northern Section) Limited (the “Respondent” or the “Claimant”) which owns the freehold title to four listed properties in Paddington, London: 36, 38, 40 and 42 Norfolk Square, W2 (the “Premises”). The Appellant has occupied the Premises as the Respondent's tenant since 1988.
On 1 April 1995, the Appellant and the Respondent entered into four 20-year leases in respect of the Premises, which commenced on 25 June 1995 (the “Leases”). The Appellant operated (and continues to operate) the Premises as a hotel called the “Continental”.
On 16 July 2014, the Respondent served notices on the Appellant under section 25 of the Landlord and Tenant Act 1954 (the “Act”). As a result, the Leases expired on 24 June 2015. The Appellant's tenancy then continued under the Act.
On 15 June 2015, the Respondent issued a claim against the Appellant, seeking the termination of the Appellant's tenancy under section 29(2) of the Act, an order that no new tenancy should be granted to the Appellant, and an order for possession of the Premises, on two discrete grounds set out in sections 30(1)(a) and 30(1)(c) of the Act. These grounds were:
(1) the poor state of repair of the Premises resulting from the Appellant's failure to comply with its repairing obligations (“possession ground (a)”);
(2) other substantial breaches by the tenant (the Appellant) of its obligations under the tenancy and other reasons connected with its use or management of the Premises including the making of unauthorised alterations to the property (“possession ground (c)”).
On 23 to 26 January 2017 and 30 January 2017, the Judge heard the trial of these matters, and, in particular, whether the Respondent could establish either or both of the grounds for possession it relied upon, as a preliminary issue in the Central London County Court.
In her judgment of 8 February 2017 (the “Judgment”) the Judge found against the Appellant. She found that both grounds were established and that these breaches amounted to an overwhelming case that the Respondent would be severely prejudiced by being required to grant new leases to the Appellant. In doing so the Judge made a number of critical findings in relation to the Appellant's director, Mr Moussoulides, and its expert witness, Mr Grove. Her judgment is clear and cogent.
On 9 February 2017, the Judge ordered that the tenancies should determine on and the Defendant should yield up vacant possession of the Premises on or prior to 30 May 2017.
On 1 March 2017, the Appellant filed a notice to appeal the 9 February 2017 order. This was stayed by Morgan J on 3 March 2017 who “queried the trial judge's jurisdiction to make an order for possession on 9 February 2017 in circumstances where the Claimant did not have at that date an immediate right [to] possession of the premises.” The parties agreed that there was no such jurisdiction, and Morgan J made an order by consent on 26 April 2017 amending the Judge's order accordingly.
The nature and focus of this appeal
On 26 June 2017, Barling J granted permission to appeal the order as so amended, on the papers. The appeal then came before me on 1 and 2 March 2018.
It is notable (and quite unusual) that the Appellant does not appeal either the Judgment itself or any of the specific findings. Rather, it submits that the process underlying the Judgment was so unfair as to render its outcome void. It is the trial process rather than its result which is under review. (Although Mr Reynolds, Leading Counsel for the Appellant in this appeal, did at first submit that, had the Judge been “fair”, it was possible that she might have made more favourable findings of fact or have exercised her discretion in a way which was more favourable to the Appellant, he did not press the point, and later declined to indicate any particular instances where this might have assisted the Appellant in reaching a preferable outcome.)
As well as the usual skeleton arguments produced by both parties, the Appellant prepared a substantial document for the appeal entitled “Schedule of Alleged Incidents of Apparent Bias”, which sets out approximately 170 “incidents” from the trial transcripts that it takes issue with, its reasons for doing so and the Respondent's position in respect of the same incidents (the “Schedule of Incidents” or “Schedule”).
I was also provided with the full transcripts of the trial (amounting to approximately 630 pages) and the full audio recordings of each day. The Schedule of Incidents identifies the sections of those recordings that I was specifically invited to listen to by the parties. As will be evident below, I have not found it necessary to comment in relation to each individual incident but rather have used particular such incidents to illustrate the general themes which the parties submitted to me were most relevant.
The question for this appeal
Fairness of the conduct of the trial
The right to a fair trial, both under the common law and Article 6 of the European Convention on Human Rights (the House of Lords in Lawal v Northern Spirit Limited [2003] UKHL 35 having confirmed that there is no difference between the requirements in each) includes the right to a trial and decision conducted and made by a decision-maker free not only from actual bias but also from the appearance of bias. Justice most both be fair and be seen to be fair.
Whether a trial was fairly conducted is a subjective assessment, necessarily made after the event and with the benefit of hindsight but without (of course) the benefit of any input from the relevant judge. In making that assessment, the reviewing court must bear in mind that ( per Jonathan Parker LJ in The Mayor and Burgesses of the London Borough of Southwark v Maamefowaa Kofi-Adu [2006] EWCA Civ 281 at [142]):
“…within the bounds set by the Civil Procedure Rules, a first instance judge is entitled to a wide degree of latitude in the way in which he conducts proceedings in his court. However, that latitude is not unlimited. Ultimately, the process must always be the servant of the judicial function of dealing with cases justly (see the overriding objective expressed in CPR 1.1) …”
It is a most important facet of the judicial function that the judge should always remain above the arena so as to maintain the detachment required of a judge. The judge must not take on the role of an advocate. If a judge intervenes in the process of the presentation and eliciting of evidence he runs the risk by such intervention of “descending into the arena”, so as to become ( per Lord Greene MR in Yuill v Yuill [1945] P 15 at 20)
“…liable to have his vision clouded by the dust of conflict.”
That necessity to remain above the arena persists notwithstanding the modern emphasis on active case management. To quote further from Jonathan Parker LJ's judgment in the Kofi-Adu case:
“Nowadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors…That said, however, it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel's submissions) must inevitably carry the risk so graphically described by Lord Greene MR. The greater the frequency of the interventions, the greater the risk; and where interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one.”
The same judgment continues in the next paragraph ([146]) as follows:
“It is, we think, important to appreciate that the risk identified by Lord Greene MR in Yuill v Yuill does not depend on appearances, or on what the objective observer of the process might think of it. Rather, the risk is that the judge's...
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