Skjevesland v Geveran Trading Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden |
| Judgment Date | 30 October 2002 |
| Neutral Citation | [2002] EWCA Civ 1567 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2002/0473 |
| Date | 30 October 2002 |
[2002] EWCA Civ 1567
Lord Justice Schiemann
Lady Justice Arden and
Lord Justice Dyson
Case No: A2/2002/0473
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE IN BANKRUPTCY
(The Hon Mr Justice Lightman
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Richard Jones QC (instructed by Messrs Tarlo Lyons) for the Appellant
Mr Simon Mortimore QC (instructed by Messrs Holmes Hardingham) for the Respondent
Mr Charles Hollander QC for the Bar Council
Lady Justice Arden giving the judgment of the court:
This is an appeal with the permission of Chadwick LJ from the order of Lightman J dismissing with costs an appeal from an order of Mr Registrar Jaques, dated 10 January 2002, in turn dismissing the application of the appellant, Mr Skjevesland, for retrial of the bankruptcy petition presented against him by the respondent ("Geveran"), on which a bankruptcy order was ultimately made on 15 July 2002. Mr Skjevesland claims that he is entitled to a retrial on the grounds that counsel for Geveran, Mr David Marks, was acquainted with Mr Skjevesland's wife and her friends between 1985 to 1991, a period that was the subject of examination in the bankruptcy petition.
The principal steps leading to the making of the bankruptcy order against Mr Skjevesland were as follows. In July 1999, Geveran served a statutory demand on Mr Skjevesland for £331,590 due under two Norwegian judgments registered in England on 30 March 1999. On 7 August 1999, Mr Skjevesland's application to set aside the statutory demand was dismissed and the bankruptcy petition was presented on 29 February 2000. At the hearing of that petition, there was a dispute as to whether Mr Skjevesland had acquired a domicile of choice in England between 1982 and 1996 and he and his son were cross-examined (among other matters) as to whether 21 Cadogan Gardens, London SW3 was his home in that period.
The hearing of the petition was adjourned on 8 October 2001. Before the return date Mr Skjevesland's wife learnt that Mr Marks was counsel for Geveran and she recalled that she had known him and informed her husband. Counsel for Mr Skjevesland submitted that, because of his acquaintance with Mr Skjevesland's wife and her friends, Mr Marks might consciously or unconsciously have obtained information about Mr Skjevesland's family that might give rise in the mind of a lay observer to the view that justice might not be done or seen to be done and thus undermine public confidence in the administration of justice. He relied on the Code of Conduct for the Bar of England and Wales which provides that a barrister should not accept instructions if to do so would cause professional embarrassment and on the law as to the position of judges established in Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700 (referred to below as Re Medicaments).
The Registrar dismissed Mr Skjevesland's application and went on on 15 July 2002 to make a bankruptcy order. He accepted Mr Skjevesland's submissions on the question of domicile of choice but held that he had jurisdiction to make a bankruptcy order on the grounds of Mr Skjevesland's residence in England in the period 1997 to 2000. Mr Skjevesland appealed against both the Registrar's order on his application arising out of Mr Marks' position and the Registrar's order on the bankruptcy petition to the High Court, but only the former appeal has been heard. It came before Lightman J, to whose judgment I now turn.
In his judgment, the judge pointed out that there was no question of Mr Marks having obtained any information about Mr Skjevesland, or of Mr Marks having inhibited Mr Skjevesland in adducing his evidence. The judge did not consider the Code of Conduct for the Bar of England and Wales (to which I will refer as the Code of Conduct) added anything to the guidance as to when a judge or tribunal is disqualified from adjudicating by the appearance of bias. This guidance was to be found in Re Medicaments, as considered in Porter v Magill [2002] 2 WLR 37. In that case, Lord Hope formulated the test in these terms:
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." (page 84).
The judge held that the same guideline in his view applied to objections to the hearing of a case by a judge as applied to the objections to participation by counsel. However, the judge held that there was a difference in the application of the principle just mentioned in these two cases. The judge held:—
"The adjudicatory role of the judge renders his impartiality and his freedom from outside influences the cornerstone of the legal process. The adversary role of the advocate generally does not call for such freedom from outside influences though it may do so in the most exceptional cases …"
The judge gave as examples of the exceptional cases the case where the advocate is in possession of confidential information and, in some circumstances, cases where the advocate had had an intimate relationship with someone else involved in the proceedings. The judge pointed out that the authorities establish that a legal adviser can "change sides" provided he does not misuse confidential information. In this case, however, Mr Marks had never acted for Mr Skjevesland or his family. Moreover, the association which Mr Marks had had with his wife did not prejudice Mr Skjevesland in any way. The objection was of no substance.
The judge added that there was no question of Mr Marks having been in breach of the Code of Conduct in that his participation in the proceedings could not have prejudiced or appeared to prejudice the administration of justice. The judge also referred to the fact that the Registrar had expressed regret that Mr Marks did not disclose his connection before or at the beginning of the hearing. However, the judge pointed out that, just as judges had to be circumspect before declaring any relationship which could not reasonably prejudice the hearing of the case, so too counsel should be circumspect before declaring a relationship which likewise could not fairly be regarded as giving rise to an objection.
It is common ground that Mrs Skjevesland and Mr Marks met in the 1980s. Mrs Skjevesland introduced Mr Marks to five of her close friends. Mr Marks visited her at her home at 21 Cadogan Gardens on at least two occasions. Mrs Skjevesland attended a party at Mr Marks' house. They may have met some five times. One of Mrs Skjevesland's friends remained friendly with Mr Marks until about 1991 and another until the end of the 1980s. During this period these persons remained close friends also of Mrs Skjevesland. Mrs Skjevesland was not cross-examined. Mr Marks had no contact with Mr Skjevesland or his son, who was also a witness.
The Code of Conduct of the Bar of England and Wales
The Code of Conduct of the Bar of England and Wales (referred to below as the Code of Conduct) contains the well-known 'cab-rank rule' which imposes an obligation on counsel to accept a brief except in certain specified situations, including where he would be professionally embarrassed because by reason of some prior connection it would be "difficult for him to maintain his professional independence or because the administration of justice might be or might appear to be prejudiced" (paragraph 603(d)). This is not a case where Mr Marks' professional independence was affected as he had little recollection of Mrs Skjevesland.
The relevant part of the Code of Conduct provides:—
"Acceptance of instructions and the 'cab-rank rule'
601 A barrister who supplies advocacy services must not withhold those services:
a) on the ground that the nature of the case is objectionable to him or to any section of the public;
b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;
c) on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available as part of the Community Legal Service or Criminal Defence Service).
602. A barrister in independent practice must comply with the 'cab-rank rule' and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is publicly funded:
a) accept any brief to appear before a Court in which he professes to practise;
b) accept any instructions;
c) act for any person on whose behalf he is instructed;
and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct or innocence of that person.
603 A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
a)—c) …
d) if the matter is one in which he has reason to believe that he is likely to be a witness or in which whether by reason of any connection with the client or with the court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced;
e) …
f) if there is a risk that information confidential to another...
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