Sengupta v Holmes
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Jonathan Parker,Lord Justice Keene |
| Judgment Date | 31 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1104 |
| Docket Number | Case No: 2001/1056 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2002 |
[2002] EWCA Civ 1104
Lord Justice Laws
Lord Justice Jonathan Parker and
Lord Justice Keene
Case No: 2001/1056
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Thomas & Miss M O'Rourke (instructed by Radcliffes Le Brasseur) for the Appellant
Mr M Shaw QC (instructed by Field Fisher Waterhouse) for the 1 st GMC & Mr Weir
Mr Hunt & Mr C Gearty (instructed by Graham John Solicitors) for the 1 st 2 nd & 3rd Respondents
Mr P Stanley (Intervening for the Lord Chancellor)
Miss E Grey (Advocate to the Court, instructed by Treasury Solicitors)
INTRODUCTION
The issue to which this judgment is directed arises from an order made by Ouseley J in the Administrative Court on 27 April 2001, when he quashed a decision of the Preliminary Proceedings Committee ("the PPC") of the General Medical Council ("the GMC") of 9 September 1999 to the effect that a complaint that Dr Sengupta had breached his terms of service as a general practitioner should not proceed to the Professional Conduct Committee ("the PCC"). The authors of the complaint lodged judicial review proceedings naming the GMC as defendant. Dr Sengupta was and is an interested party. The case was somewhat unusual because, for reasons into which it is presently unnecessary to go, the GMC supported the claim and submitted that the decision of the PPC ought to be quashed. Dr Sengupta, naturally enough, sought to uphold the decision that the complaint should not proceed to the PCC.
Ouseley J quashed the decision (and certain other decisions with which we are not concerned). Dr Sengupta sought permission to appeal. I considered the application on the papers, and refused it on 13 May 2001. I said:
"I think the Judge was right for the reasons he gave, not least having regard to [two authorities]. As for the costs there is no error of principle."
As was his right Dr Sengupta renewed his application for permission to appeal in court, and the matter came before Simon Brown and Tuckey LJJ on 20 July 2001. Miss O'Rourke made submissions on Dr Sengupta's behalf, and the court granted permission. The substantive appeal came on for hearing on 13 March 2002. The court was constituted by myself, Jonathan Parker and Keene LJJ. At the outset Miss O'Rourke for Dr Sengupta drew attention to the fact that I had refused permission on the papers and submitted that I should recuse myself on apparent bias grounds. Counsel for the respondents to the appeal, that is to say the original complainants and the GMC, either supported or did not oppose this application. The matter seemed—and seems—to us to be of no little importance. If the court accedes to Miss O'Rourke's application, that will establish a general rule, or at least invoke a general practice, to the effect that a Lord Justice who has refused permission to appeal on the papers, should not, where permission is subsequently granted by another judge or judges, sit on the substantive appeal. There is nothing in the circumstances of this case to suggest any special or particular consideration by force of which I should recuse myself; the issue is, and has been treated as, one of principle. And it may be that the application of such a general rule or practice would not be limited to the procedural arrangements prevailing in the Civil Division of the Court of Appeal. Consideration would have to be given to the position in the Administrative Court, and the question whether a judge who has refused judicial review permission on the papers should later sit on the substantive judicial review (where permission has been given by another judge in the meantime). I should add that attention was drawn in this case to the fact there is an outstanding application to admit new evidence, in case it might be thought that the resolution of the apparent bias issue should be different where the material being considered by the court on the full appeal was not the same as what had been before the first Lord Justice when he refused permission; but I understand all parties to be agreed, and it is certainly my view, that contingencies of that kind can and should make no difference.
In these circumstances we thought it necessary to adjourn the matter on 13 March 2002, and to ask the Attorney General to appoint an Advocate to the Court to make written submissions on the issue of apparent bias. The Attorney acceded to this request, and submissions were in due course provided by Eleanor Grey of counsel, to whom we are grateful. In addition, while the matter stood adjourned, the court was notified by the Treasury Solicitor that the Lord Chancellor desired to instruct counsel to intervene in the proceedings and make submissions on his behalf. We permitted this to be done. In the result the court, constituted as it had been on 13 March, sat again on 17 July 2002 to consider and decide whether I should recuse myself from the substantive appeal on apparent bias grounds. We were armed with further written submissions from Miss O'Rourke, Mr Mark Shaw QC for the GMC, Mr Gordon Pollock QC for the Lord Chancellor, as well as those of Miss Grey. Counsel supplemented their written arguments with short oral submissions. The hearing was also attended by Mr Conor Gearty for the original claimants, but he did not find it necessary to add anything.
We now give judgment on the apparent bias issue.
THE RULES
The procedure by which applications for permission to appeal are dealt with is contained in CPR 52.3, as follows:
"(2) An application for permission to appeal may be made —
(a) to the lower court at the hearing at which the decision to be appealed was made: or
(b) to the appeal court in an appeal notice….
(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.
(4) Where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.
(5) A request under paragraph (4) must be filed within 7 days after service of the notice that permission has been refused."
There is an associated Practice Direction ( 52PD.10,4.13):
"If permission is refused without a hearing the parties will be notified of the decision with the reasons for it. The decision is subject to the appellant's right to have it reconsidered at an oral hearing. This may be before the same judge."
There is nothing in any rule or practice direction to stipulate whether or not a judge who had at any stage considered an application for permission might sit as a member of the court hearing the substantive appeal in a case where permission has later been granted.
In light of some of the submissions made to us, it is necessary briefly to describe the procedural regime for applications for permission to appeal which was in being before CPR 52.3. The position was that then, as now, the application was put before a single Lord Justice for consideration on the papers. He might grant permission to appeal; or he might indicate that he was "minded to refuse" permission. In that event, the applicant's solicitors were provided with the reasons given by the Lord Justice for this provisional conclusion and were told by letter that they were entitled to seek an oral hearing of the application. A prescribed form was stipulated for this letter. It was set out in Annex B to the Practice Direction which dealt with the procedure. This Practice Direction is reported at [1999] 1 AER 186. The prescribed form for the letter included this:
"Wherever possible the assigned Lord Justice will conduct the oral hearing, either sitting alone or with another Lord Justice as the case may be".
THE AUTHORITIES
(1) General
There is learning both in this jurisdiction and in the European Court of Human Rights in which consideration is given to the circumstances in which a judge should recuse himself from a case on bias or apparent bias grounds. It is convenient first to refer to two recent authorities, one of this court and one of their Lordships' House, which deal with the test for bias in general terms. Re Medicaments and Related Classes of Goods (2) [2001] 1 WLR 700, Lord Phillips MR said at 727A:
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased".
This test was approved by their Lordships' House in Magill v Porter [2002] 2 WLR 37, at 83H—84A.
In this case it is especially important to consider closely the nature of the test imported by the notional "fair-minded and informed observer". The reason is that in her oral submissions on 17 July 2002 Miss O'Rourke accepted in terms that a lawyer accustomed to practise in the higher courts here, with daily or at any rate frequent experience of applications for permission to appeal and substantive appeals and the disposition of those matters by judges of the Court of Appeal, would entertain no apprehension at all of bias in a Lord Justice who found himself in the circumstances which apply to me in this case. And she was inclined to accept that the same would be true of a specialist legal journalist whose metier was to report the conduct of business in the Royal Courts of...
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