Bubbles & Wine Ltd v Reshat Lusha
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lord Justice Leggatt |
| Judgment Date | 14 March 2018 |
| Neutral Citation | [2018] EWCA Civ 468 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2016/2559 |
| Date | 14 March 2018 |
[2018] EWCA Civ 468
Lord Justice Flaux
and
Lord Justice Leggatt
Case No: B2/2016/2559
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE FREELAND QC
Case number: 3QZ39784
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person (represented by its director, Mr Laurent Faure)
Ms Hannah Glover (instructed by Fieldfisher LLP) for the Respondent
Hearing date: 22 February 2018
The question on this appeal is whether a judge showed apparent bias by reason of a conversation held in private with one party's counsel alone during a trial.
The proceedings
The appellant, Bubbles & Wine Limited ("B&W"), engaged the respondent, Mr Lusha, to carry out building works at its premises in Moxon Street, London, between November 2012 and April 2013. Mr Lusha submitted invoices for the work in a total amount of £52,805, of which £28,000 was paid by B&W but the rest was not. In October 2013 Mr Lusha brought a claim for the balance in the Central London Country Court. B&W disputed the claim and also made a counterclaim for (i) losses allegedly caused by delay in completing the work, (ii) the cost of remedying certain alleged defects and (iii) loss said to result from inability to reclaim VAT due to Mr Lusha not being registered for VAT.
The case was listed for trial on 19 February 2015 before Deputy District Judge Wallis (the "trial judge"). The evidence was heard on that day but there was insufficient time for closing submissions. By agreement, these were subsequently made in writing. The trial judge handed down a written judgment on 28 April 2015. He found the claim proved, with the exception of certain sums claimed for materials, parking and payment of the congestion charge amounting in total to £1,155.40, which were not supported by documentary evidence. He dismissed the counterclaim, holding in summary that: (i) Mr Lusha did not cause delay in opening the premises as alleged and B&W had in any case failed to prove that the alleged delay had caused them any financial loss; (ii) B&W had failed to prove that any of the work done was defective; and (iii) whether or not Mr Lusha should have been registered for VAT, B&W suffered no loss through inability to reclaim VAT since none was charged. In the result, judgment was given in favour of Mr Lusha for £23,649.60 plus interest.
B&W appealed against the decision to the circuit judge. Although other grounds were argued, the main ground of appeal was that the trial judge ought to have recused himself by reason of actual or apparent bias. The appeal was heard by His Honour Judge Freeland QC, who dismissed it for reasons given in a judgment dated 2 June 2016. Although permission to appeal was initially refused on paper, following an oral hearing B&W was given permission to pursue a further appeal to the Court of Appeal solely on the issue of bias. At the hearing of this appeal, Mr Faure, a director of B&W who has represented the company in this court as he did before the circuit judge, made it clear that no allegation of actual bias is maintained and that B&W's case is put squarely on the ground of apparent bias.
The relevant circumstances
The circumstances relevant to the allegation of apparent bias are the subject of detailed findings made by the circuit judge and are clearly evidenced by a series of contemporaneous emails exchanged between the parties' respective counsel and the trial judge, by the account of the relevant events given by the trial judge in his judgment, and by a witness statement made by Mr Rahul Varma, the barrister who represented Mr Lusha at the trial. The relevant circumstances may be summarised as follows.
In July 2014 the trial judge's daughter did a mini-pupillage at the barristers' chambers of which Mr Varma was, at that time, a member and on one day she accompanied Mr Varma to court. On the morning of the trial on 19 February 2015, when he saw the name of the judge before whom the case was listed, Mr Varma explained this fact to Mr Niraj Modha, the barrister who was representing B&W on a direct access basis. Mr Modha took instructions from his client, who raised no objection to Deputy District Judge Wallis hearing the case.
Although the case was only set down for a day, it was not until after 6pm on 19 February 2015 that the court finished hearing the evidence. There was then a discussion between counsel and the trial judge in which it was agreed that closing submissions would be made in writing. The timetable was left to be discussed between counsel, who also agreed to draw up a list of issues. As counsel were packing up to leave court, the trial judge asked Mr Varma to remain behind saying that he would like to speak to him about a personal matter. Mr Modha agreed to this and Mr Varma then retired with the trial judge to his room. They had a conversation in which the trial judge thanked Mr Varma and his chambers for their hospitality towards his daughter and they then spoke about the judge's daughter for a few minutes. At the end of the conversation the trial judge asked Mr Varma if he knew or was off to join Mr Modha and, on being told that they knew each other from previous cases, the judge asked Mr Varma to pass on the following comments to Mr Modha insofar as it might help both counsel to compile a list of issues: (1) the counterclaim seemed weak; and (2) the claimant's case had several evidential gaps. Nothing more was said and Mr Varma then left.
On his return to chambers, Mr Varma sent an email to Mr Modha timed at 18:51 on 19 February 2015, in which he passed on what the trial judge had said. In the email Mr Varma stressed that he had not invited any comment about the case, had made no submissions about it and was passing on no less detail than the judge had given him. He confirmed that they had otherwise spoken only about the judge's daughter and her choice of degree.
Mr Modha replied at 19:06. He said that he would have preferred for the judge to either not say anything or to have expressed his views on the case when all were present, although Mr Modha said that he did not criticise Mr Varma in any way and confirmed that "in my view you properly notified me of the quite uncontroversial personal connection between you and the judge before the hearing even began". Mr Modha also stated:
"As it happens, I do not think that the judge has said anything that might not have been reasonably anticipated by either of the parties following the evidence today. I think it probably does help to narrow down some issues…"
On the following day (20 February 2015) the trial judge himself sent an email to Mr Modha, copied to Mr Varma, in which he said:
"As you know, I spoke to Mr Varma after Court yesterday evening - the subject of our discussion was my daughter's mini-pupillage at Lamb Chambers last summer in which he played a part. I did, however, take the opportunity also to mention an aspect of the case and wish you to be aware of this.
As I explained to him, I would have done so in your presence had Mr Faure not remained in the room, but as you both have a considerable number of commitments in the next fortnight in addition to the unexpected burden of having to produce written final submissions, I felt - very exceptionally, I add - it might be helpful to share my immediate reaction to one aspect of the case. I stress it is no more than that. It is that regardless of the questions of causation, remoteness, etc., it did seem to me that the counterclaim suffers from an absence of evidence.
You may, of course, disagree, and I am not expecting you now to comment. I emphasise that no decision has been reached by me about the point and I assure you I shall dispassionately consider all the contentions and evidence when I have the final submissions."
Mr Modha was concerned that the trial judge's account of his conversation with Mr Varma differed from that reported by Mr Varma in that it referred only to the counterclaim and made no mention of any evidential gaps in the claimant's case. Accordingly, Mr Modha sent an email to the trial judge on 23 February 2015 expressing concern that it was not clear precisely what had been said about the case in the judge's conversation with Mr Varma and seeking clarification. The trial judge replied stating that, before the hearing, he had never met or spoken to Mr Varma and reiterated that his purpose in talking to Mr Varma after court was only to talk about his daughter. He confirmed that his recollection of what he had said to Mr Varma about the case was as he had already stated.
The next day (24 February 2015) the trial judge sent another email to Mr Modha (copied, as before, to Mr Varma) which read as follows:
"I have been giving further thought to our recent exchange of messages. It is, of course, fundamental that the Court is, and objectively is seen to be, impartial. For my part, I do not consider this principle has been compromised. However, after considering what I am about to state it has felt it has been, I fear I shall have to recuse myself. It would be better in those circumstances, I feel, to grasp the nettle now and set in motion obtaining a new trial date.
I have explained why I thought it would be helpful for you to know my initial concern and this was conveyed to you both by me and, at my request, Mr Varma. Indeed, B&W have benefited from knowing this so it can be dealt with in submissions. It may assist you to know I had like concerns with aspects of Mr Lusha's evidence. This would be seen from the list of points I would propose to send Mr Varma and you which, without in any way restricting what you would otherwise say, could (if wished) be dealt with in the submissions. It would, I think, demonstrate, if indeed that...
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