Baker v Quantum Clothing Group and Others (No 4)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob |
| Judgment Date | 05 June 2009 |
| Neutral Citation | [2009] EWCA Civ 566 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2007/0795 |
| Date | 05 June 2009 |
[2009] EWCA Civ 566
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM
HIS HONOUR JUDGE INGLIS
Before: Lady Justice Smith and
Lord Justice Jacob
Case No: B3/2007/0795
4NG15127
John Hendy QC, Theodore Huckle & Robert O'Leary (instructed by Messrs Wake Smith) for the Appellant
Robert Owen QC & Simon Beard (instructed by Weightmans LLP) for the 1 st Respondent
Christopher Purchas QC & Catherine Foster (instructed by Hill Hofstetter) for the 2 nd Respondent
Toby Stewart (instructed by Halliwells) for 3 rd Respondent
Hearing dates: 16–18 March 2009
Lord Justice Jacob:
This is the joint judgment of Smith LJ and myself.
On 22 nd May 2009 judgment in the main appeal was handed down by Smith LJ on behalf of the full Court consisting of Sedley LJ, Smith LJ and me. Largely we found for the claimants in what are taken as test cases about noise-induced deafness in the textile industry. Whilst judgment was reserved we received applications from the respondents that the court should recuse itself on the grounds that Sedley LJ was in a position of apparent bias. Sedley LJ considered this application and concluded that he did not feel it necessary or appropriate to recuse himself. He told the respondents that, if they wished to persist in their application, it would be considered by Smith LJ and myself. We concluded that this was not a case for recusal and so the main judgment was handed down. At the hand-down it was indicated that the applications would be refused and that our reasons would be given later. These are our reasons.
The Law
The most recent House of Lords authority on the subject of apparent bias is Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416. It was an asylum case involving a sympathiser with the Palestinian Liberation Organisation who claimed that she feared attack by Israeli agents. The Judge on appeal from the Immigration Appeal Tribunal was a member of the International Association of Jewish Lawyers and Jurists. The magazine of that association had carried a number of articles and pronouncements which were extremely pro-Israeli and markedly antipathetic to the PLO. The House of Lords held that there was no reason for the judge to recuse himself.
To our minds the facts of that case were much stronger than those relied upon here (see below). Yet they were not enough to justify a holding of apparent bias or want of objective impartiality on the part of the judge. One can conveniently take the principles as set out by Lord Hope:
[39] The basic legal test applicable is not in issue. The question is whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there existed a real possibility that the judge was biased, by reason in this case of her membership of the Association: Porter v Magill [2002] 2 AC 357. The question is one of law, to be answered in the light of the relevant facts, which may include a statement from the judge as to what he or she knew at the time, although the court is not necessarily bound to accept any such statement at face value, there can be no question of cross-examining the judge on it, and no attention will be paid to any statement by the judge as to the impact of any knowledge on his or her mind: Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, para 19 per Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V-C. The fair-minded and informed observer is “neither complacent nor unduly sensitive or suspicious”, to adopt Kirby J's neat phrase in Johnson v Johnson (2000) 201 CLR 488, para 53, which was approved by my noble and learned friends, Lord Hope of Craighead and Baroness Hale of Richmond, in Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, paras 17 and 39.
History of the application
The main appeal commenced on 16 th March 2009. The claimants' solicitors were Messrs Wake Smith and their leading counsel Mr John Hendy QC. Messrs Weightmans were the solicitors for Quantum PLC the first respondent and their leading counsel was Mr Robert Owen QC. Because of the test nature of the proceedings, Meridian/Courtaulds (solicitors Hill Hoffstetter, leading counsel Christopher Purchas QC) and Pretty Polly (solicitors Halliwells, counsel Mr Toby Stewart) were permitted to take part: questions affecting other live cases involving these parties would be decided.
At the outset of the hearing, Sedley LJ disclosed that he was Hon. President of the British Tinnitus Association (“BTA”). The relevant transcript reads:
“LORD JUSTICE SEDLEY: While I remember, before we go any further, it occurred to me at the weekend that I had better declare that I am President of the British Tinnitus Association. Does anybody mind? It is a voluntary self-help organisation that brings clinicians and patients together. It has no axe to grind at all in liability or litigation terms. Is that all right?
MR OWEN: Certainly my Lord.
MR PURCHAS: I cannot think there is any possible ground –
LORD JUSTICE SEDLEY: If you do think of something, make sure I know fairly soon.”
No objection was made by Mr Stewart.
So the three respondents did not object to Sedley LJ sitting, knowing of his position as Hon. President of the BTA. The hearing was completed on 18 th March. Judgment was reserved.
Just over seven weeks later, the Court received a letter from Weightmans dated 5 th May 2009. We set it out in full:
“On the first day of the hearing Lord Justice Sedley disclosed in open court that he is President of the British Tinnitus Association (“BTA”) (which he described as a honorary role) and invited the parties to state if they had any objection to his sitting on the appeal.
On the basis of that single piece of information our clients – the Respondents – were content to waive any objections that they might otherwise have raised.
Since that time further information has come to light which causes our clients and ourselves real concern.
That further information comprises the following:
(i) it was in November 2007 that Lord Justice Sedley became President of the BTA.
(ii) the BTA is a charitable organisation whose aims include:
a. raising tinnitus awareness
b. campaigning to achieve a better deal for those affected by tinnitus. [BTA “Objectives and Activities”]
(iii) The Appellant in this case, Ms Baker, has mild tinnitus allegedly consequent upon noise exposure and if she is successful in her appeal, will succeed in establishing damages for both damages to her hearing and tinnitus.
(iv) Lord Justice Sedley himself suffers from mild tinnitus (extract from Conference Speech 2007).
(v) Within months of Lord Justice Sedley's ascent to presidency of the BTA, Wake Smith & Tofield (“Wake Smith”) (the Law firm representing Baker) became the sole linked/nominated firm to the BTA.
(vi) The BTA publicly describe Wake Smith as “leaders in their field of compensation”
(vii) The lead solicitor for Wake Smith (Chris Fry) has co-authored a paper on tinnitus and compensation posted on the BTA website
(viii) The co-author of the paper is one Andrew McCombe, ENT Surgeon, who was the Claimant's lead medical expert in the 7 test cases heard in the High Court in Nottingham, (October/November 2006)
(ix) Wake Smith advertise on their own website their association with the BTA.
(x) The 2008 BTA medico-legal conference was organised by Wake Smith.
Many of these matters (i), (ii), (v), (vi), (viii), (ix), (x) suggest a web of links between the professionals involved in the case – solicitors and expert – on the appellant's side, with the BTA – and hence, albeit indirectly, with Lord Justice Sedley. The BTA's own publications make clear that, at the very least, they assist in the provision of information to persons who may wish to bring compensation claims.
Conscious of our duty of candour owed to the court we should make it clear that, apart from items (iv), (vii) and (viii), these matters were identified before the conclusion of the hearing and the advice of Leading Counsel then instructed was that it would not be in our client's interest to raise them in support of an application for recusal. Our clients accepted Leading Counsel's advice.
Items (iv), (vii) and (viii) were, however, not discovered until a fortnight had passed since the hearing, and our clients waiver, either by word on day 1 or by continued participation in the hearing thereafter, was accordingly not made with the full knowledge now available.
Applying the test now laid down by the House of Lords in Porter v Magill and without needing to suggest that Lord Justice Sedley would have dealt or would deal with the appeal other than on its merits, we and our clients putting ourselves, as that test requires, in the shoes of a fair minded and informed observer would suggest that there is a real possibility of bias when:
a. a Judge suffers from the same condition as is in issue – in terms of responsibility (or not) for it – in the appeal;
b. the Judge does not himself disclose this – while disclosing other facts perceived by him to be relevant to his ability to sit;
c. this occurs in the context of the web of links to which we have already referred.”
The letter concluded by suggesting the appeal should be relisted before another panel.
By letter of 13 th May 2009, Halliwells supported Weightmans' letter. They sought to attach blame to the conduct of Wake Smith. They said “we must...
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