Hardip Singh v Rashed Yaqubi

Hearing dates : 11 December 2012

This is an appeal against a judgment of His Honour Judge Cowell given at the Central London County Court on 14 February 2012. The judge gave judgment in favour of Mr Hardip Singh ("the appellant") in the sum of £8,709.50, plus interest, but dismissed his much larger claim against Rashed Yaqubi ("the respondent") for hire charges for a Rolls Royce. The appeal is against the dismissal of that claim.

The judge found that on 6 August 2009, a Rolls Royce was involved in an accident. It was in collision with the respondent's vehicle in Central London. The judge found:

"In this case the claimant [appellant] is a partner with one Mr Bharat Thakrar in a property development business. One of the fleet of seven vehicles owned by the partnership was involved in a minor accident".

The judge found for the appellant on the issue of liability. The judge summarised subsequent events. The damage to the Rolls Royce was a dent to the rear door on the near side. The appellant was anxious, the judge found quite reasonably, for the vehicle to be returned to the expert suppliers in Birmingham from whom he had purchased it. Though the vehicle was drivable and was driven after the accident, it was accepted that repair was required.

The vehicle was carried to Birmingham on 11 August 2009 for repair. The appellant hired a Bentley for five days and then a Rolls Royce was hired. The appellant had notified his insurers and made a statement for Accident Exchange Ltd, the company that provided the hire car.

The insurer's engineer did not inspect the damaged Rolls Royce until 11 September 2009. The repairs to the rear door were completed on 29 September and the hire ended on 30 September. The total amount claimed for hire charges of the Bentley and the Rolls Royce was £99,439.06, with a daily rate of about £2,000 for the Rolls Royce. In the course of the hearing, that figure was adjusted to £92,953.90.

The judge dismissed the hire claim in its entirety but went on to consider what award he would have made had it been reasonable for the appellant to hire a Rolls Royce. The appellant submitted written evidence of charges and the respondent called a witness, Miss Bennett, who gave oral evidence on the basis of enquiries made. The judge accepted her evidence, giving reasons, that a Rolls Royce could have been hired for the relevant period for £21,428.57.

There are three grounds of appeal, the first challenging the judge's finding on need and the second his finding as to the appropriate sum to be awarded if need for a hire vehicle was established. Permission to appeal on those grounds was granted by the judge. No application was made either to the judge or on notice to this court, for permission to appeal on the proposed third ground: serious irregularity by reason of the judge's apparent bias. Permission to appeal on this ground was sought at the hearing. It had featured in grounds of appeal and in both skeleton arguments. Mr Hough, for the respondent, opposed the application but did not claim to have been prejudiced by its lateness. The court granted permission in the course of the hearing, notwithstanding the lateness of the application.

Mr Williams, for the appellant, rightly took the irregularity ground first. He indicated that, if he failed on that ground, he would not pursue ground 2, accepting that on the evidence, an unbiased judge was entitled to accept the lower figure. If he succeeded on the third ground, there would need to be a re-trial in any event.

Bias

The serious irregularity is said to be a hostile animus shown by the judge towards to the appellant and his case in the course of the judgment. The appellant is a rich man and the damaged Rolls Royce was worth in the region of a quarter of a million pounds.

On behalf of the appellant, Mr Williams said that he was not claiming actual bias but an appearance of bias. The judge's comments, in the course of his judgment, were such that a fair-minded and informed observer would conclude that the judge was unable to bring an objective judgment, uninfluenced by extraneous factors, to bear on the issues in the case.

In the last paragraph of his judgment, the judge stated that he was "very conscious that this judgment has been given extempore, shortly after the conclusion of argument" adding that he "would have preferred a little more time to reflect and to have given judgment tomorrow". He added that because that would not have been convenient to counsel he had decided to give judgment on the day. The judge began his judgment by saying that it was "almost the last judgment I shall ever give after 15 years of doing justice according to law to the best of my ability."

The comments complained of are in paragraphs 1, 2, 3 and 8:

"1. … This case raises the moral question which has occasioned me much anxious thought, whatever answer the law gives to the facts of this case which has occasioned further even more anxious thought, whether the ever increasing insurance premiums of the ordinary motorist, particularly one struggling to make ends meet and needing a modest car to go to work, should in some part be used so that the rich may continue at no expense to themselves to be filled with good things that they think they need.

2. … The claim was defended both as to liability and as to quantum. The temptation to give a perverted judgment on liability against the claimant in order to avoid all questions of quantum was very great, but conscience and my judicial oath meant that the temptation was successfully resisted."

At paragraph 3, the judge noted the appellant's evidence that he was in the property business dealing with millionaires and related investments and used the Rolls Royce "to maintain the correct impression in such circles." He needed "to maintain his image and that of his partnership … maintenance of image of success was paramount". The judge commented:

"Well, what a testament that is to the superficial if not false nature of the warped values of society, or as the claimant himself put it 'that is how these people see it', referring to a list of celebrities which I will come to in a moment that the claimant had as his clientele. That is a very subjective view which, as I shall explain, is unsupported by detailed evidence."

I need not recite the list of celebrities named.

Complaint is also made of comments at paragraph 8. The judge cited, at paragraph 7, the speech of Lord Mustill in Giles v Thompson [1994] 1 AC 142, with which the other members of the Committee agreed, at 167G:

"The discipline imposed by judges who have the acumen and experience to detect greed and slapdash claims procedures will in my opinion do much more to forestall abuse than a dusting-down of the old law of champerty."

Judge Cowell stated:

"In these circumstances there is the obvious feature that the party signing the hiring form is ordering riches for himself at another's expense, and that is just the sort of situation which the courts ought to investigate rather carefully, whether it is right that that other, who is bearing the expense, ought properly to bear that expense. The law, it seems to me, ought to be, if it is not already, that that other is entitled to be presented with clear factual evidence of need on the part of the claimant."

The judge then quoted a verse from Hilaire Belloc's poem about the elephant who is supplied with many tons of hay a day. (" The Elephant" from the Bad Child's Book of Beasts). This was said by Mr Williams to amount to facetious comment.

It was also submitted, though somewhat faintly, that the judge's finding of fact as to hire rates demonstrated a hostile animus.

The comments were unfair, submitted Mr Williams, because the appellant was not trying to profit at the expense of another. He merely wanted an equivalent vehicle while his damaged Rolls Royce was being repaired. A fair-minded and informed observer would conclude from the references to the rich being filled with good things, to the temptation to give a perverted judgment on liability and to the warped values of society that the judge was unable objectively and in accordance with legal principle to make a sound judgment upon a claim by a rich man for a large hire charge. The comments indicated active hostility towards the appellant's claim, it was submitted, though an allegation of actual bias is disclaimed.

The question is whether the circumstances described would lead "a fair-minded and informed observer to conclude that there was a real possibility that the Tribunal was biased" ( Porter v Magill [2002] 2 AC 357, at paragraph 103 per Lord Hope of Craighead). Mr Williams referred to Timmins, a personal injury case and one of the cases considered in Locabail v Bayfield Properties [2000] QB 451, at pages 491 to 496. This court, Lord Bingham of Cornhill CJ presiding, concluded "not without misgiving" that an appeal should be allowed where the Recorder, who was a "prolific writer" on legal issues, made comments in articles "written in close proximity to the trial" in one of which the Recorder had "vehemently complained" of the conduct of an insurance company and, more...