Smith v Kvaerner Cementation Foundations Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 2006 |
| Neutral Citation | [2006] EWCA Civ 242 |
| Docket Number | Case No: B3/2005/1407 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2006 |
[2006] EWCA Civ 242
Lord Chief Justice of England and Wales
Sir Anthony Clarke Mr and
Lord Justice May
Case No: B3/2005/1407
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHESTERFIELD COUNTY COURT
Mr Recorder Ian McLaren QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Anthony Speaight QC and Miss Kate Livesey (instructed by the Bar Pro Bono Unit) for the Appellant
Mr Philip Turton (instructed by Kennedys) for the Respondent
Mr Bankim Thanki QC for the Intervener
Lord Phillips CJ:
This is the judgment of the court.
Introduction
This case came before the court as an application by Mr Smith for permission to appeal against a judgment on liability given against him by Mr Recorder McLaren QC, nearly 5 years ago, on 25 April 2001. There has been some procedural delay in bringing this application to a hearing, but it was made a little over 4 years out of time. It has been referred to the full court because of the importance of the issues that it raises and, for that reason, not merely has the respondent company been invited to appear on this hearing, but the Bar Council has been given an opportunity to intervene.
In a case such as this, where the respondent appears to resist an application for permission to appeal, the merits of the appeal itself tend to be fully argued. Accordingly, the normal practice is for the court to direct that the hearing will embrace both the application for permission to appeal and, if permission is granted, the appeal itself. On this occasion the court ordered that the hearing should be limited to the issue of whether permission to appeal should be granted. This was because of apprehension on the part of Mr Smith as to his potential liability for the costs that might be incurred on a full hearing. In the event Mr Smith has been represented, pro bono, by Mr Anthony Speaight QC and Miss Kate Livesey and we would like to record the appreciation of the court for their willingness to appear on this basis and for the assistance that they have afforded us. Mr Speaight developed full argument as to the merits of the appeal, as did Mr Philip Turton on behalf of the respondent, 'KCF'. In these circumstances, we suggested to counsel that it would be sensible, if we were minded to grant permission to appeal, to determine the appeal on the basis of the arguments submitted to us. Counsel agreed to this course, which we shall adopt.
The Recorder's decision
Mr Smith's claim is for serious personal injuries that he sustained in a road accident in Thailand on Christmas Eve in 1996. He was being driven in a car owned by KCF. The driver, Paul Andrew, who was aged 21, was killed in the accident. The sole issue at the trial was whether Mr Andrew was driving with or without the consent of Mr McIntyre, KCF's manager in Thailand and the person for whom the car in question had been provided by KCF. It was common ground that Mr Smith had the onus of proving that Mr Andrew was driving the car with Mr McIntyre's consent and that, if he failed to do so, his claim could not succeed. Mr McIntyre gave evidence that he had not given his consent and, although there were aspects of his evidence that were unsatisfactory, the Recorder held that Mr Smith had failed to prove that his evidence on the critical issue was not accurate. Accordingly, his claim was dismissed.
Mr Smith contends that the judgment should be set aside because there was an appearance that the Recorder was biased, for two quite different reasons. The first was that he was the head of the chambers to which both counsel for Mr Smith, Mr Dominic Nolan and counsel for KCF belonged ('the chambers point') . The second was that the Recorder had acted for companies in the same group as KCF in the past and was, furthermore acting for such companies in litigation that was still ongoing at the time that he heard Mr Smith's action, ('the client point) . Both these facts were disclosed to Mr Smith shortly before the hearing. He made no objection at the time, but he contends that the circumstances were such that his consent to the Recorder remaining seized of the case did not amount to a waiver of his right to raise an allegation of bias.
The facts giving rise to the allegation of bias
Mr Speaight made it plain that it is not alleged that the Recorder was actually biased in reaching his decision. What is alleged is that there was an appearance of bias. The circumstances giving rise to that allegation are as follows.
The Recorder was the head of the chambers to which both Mr Nolan and Mr Turton belonged. Mr Smith's solicitors informed him of this on the morning that the case was heard, adding, according to Mr Smith, that because the Recorder liked both men he would be impartial.
In the course of Mr Nolan's opening, the following exchange took place:
"JUDGE McLAREN: I should have added, Mr Nolan, that I have frequently acted for this company in this country in many mining accidents of relatively – there is a schedule, by the way, at 128 – I had better mention it, I forgot. I have acted for this – probably this insurance company but I do not know which insurance company it is – and I certainly acted for this company in various forms under the Cementation heading and am still acting for this company in litigation in this country. I should have mentioned that before I started.
MR NOLAN: Your Honour had because your honour had …
JUDGE McLAREN: I asked that a message be got to you, yes.
MR NOLAN: Through the offices of Your Honour's clerk, the message was transmitted to the parties. Your Honour, I am happy to indicate at this stage that Mr Smith has been fully informed of Your Honour's status as a Recorder and of the fact that Your Honour has acted and may in the future continue to act for an associated company, if not the defendant company itself, and Mr Smith, through me, indicates that he makes no application for any disqualification of the tribunal."
The reference to a schedule at p 128 is not relevant in the present context. As is apparent from this exchange, the Recorder had taken steps before the hearing to inform Mr Smith of his professional involvement with KCF.
At the request of the court Mr Nolan has provided a statement dated 4 January 2006 setting out, to the best of his recollection with the help of a contemporary note, the advice that he gave to Mr Smith in conference before the trial. Mr Smith has waived privilege in relation to this. Mr Nolan advised on the basis that there was a continuing professional relationship, through solicitors, between the Recorder and KCF. While Mr Nolan referred to the fact that both he and KCF's counsel were in the same chambers as the Recorder, he did not advise him that this was something to which Mr Smith was entitled to object, for he could conceive of no basis upon which this could prejudice Mr Smith or the interests of justice. He did, however, advise Mr Smith that it was open to him to seek an adjournment and a trial before another judge on the ground that the Recorder acted for KCF. At this stage no distinction was drawn between that company and others in the same group. Mr Nolan counselled strongly against this course. He stated that it was an advantage that the Recorder was a member of his chambers as he knew his qualities and the nature of his approach. He was able to reassure Mr Smith that he could expect a fair trial and that there would be no question of the Recorder being biased.
At the request of the court the Recorder has produced a Memorandum dated 24 January 2006 setting out the result of a check that he has made of the extent of his professional relationship with companies in the KCF group. He was never instructed by KCF itself. In 1995 he was instructed for a company in the same group as KCF on an interlocutory appeal. In 1998 he advised in writing and settled a contribution notice for a company in the same group as KCF. In 1999 he began acting in group litigation for 34 different companies, three of which were in the KCF group. His last involvement with this litigation, prior to Mr Smith's trial, was in November 2000 but the litigation remained ongoing at the time of Mr Smith's trial. On each occasion that he was instructed for a member of the KCF group, his client had the benefit of insurance so that the insurers were primarily concerned with the conduct of the litigation.
It is apparent that the Recorder, who understandably did not have a precise recollection of the matters that we have just described, somewhat exaggerated his professional involvement with KCF at the trial. We do not think that this is material. Indeed, his own perception of his involvement at the time is probably more relevant to the issue of bias than the precise position as subsequently ascertained.
Submissions: the chambers point
Mr Speaight did not submit that an appearance of bias arises simply from the fact that a Recorder is a member of the same chambers as counsel appearing before him. Mr Bankim Thanki QC, instructed by the Bar Council, had come prepared, as his skeleton argument demonstrated, to meet such a submission. In the event he was not called upon to do so.
Mr Speaight drew attention to circumstances in which a Recorder might be financially affected by a ruling made against counsel in his chambers. Members of some chambers share expenses on the basis of contributing a percentage of earnings. In such circumstances, a ruling that reduced the earnings of counsel appearing before him could result in an increase of the contribution to...
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