Hello. I'm Benham Anwar on Welcome to part Two off this Webinar Siris on bias. I'm a barrister with the 36 Group based in London. I practice in civil and in public law. In the first part of this Siri's, we talked about the classic legal test off bias from Porter and McGill UK House of Lords case. We looked at some of the attributes off the fair minded and informed observer, the mythical creature who exists in part of this legal test on. Then we looked at the procedures for raising complaints off bias against judges. In Part two. What we're going to be looking at is a specific and recent case which dealt with an issue which I believe is on the rise. Andan important issue in this area on that is professional connections between judges and barristers. It could also equally be phrased professional connections between judges, Andi participants in legal proceedings. So why are we talking about this issue? Well, there is an increasing trend these days for professionals to have some connection to the judges who decide on cases that they're involved in that is simply symptomatic off a legal profession which is relatively small, concentrated in certain geographical areas. Onda also an increasing trend within the law for specialised courts and tribunals, specialist judges and specialist practitioners, which further limits the pool of personalities and individuals involved in any particular area off law. It's a small legal world, and it's also quite common for people to be doing networking to be building and developing a professional networks be that online on door offline, attending functions, attending drinks, events, receptions, parties on all the rest of it, alongside senior members off the judiciary, decision makers, people off influence. So it's not uncommon for there to be complaints about concerns that parties might have that the relationship between a judge and or any of the participants in legal proceedings give rise to a concern that the judge may not be able to be as independent and impartial as they need to be to satisfy the requirements off their office. That was so in a recent case, Orphee Court of Appeal called Vanderbilt and Azumi 2017 again, Citation is in your reference sheets now. This is a really interesting case which sets out some relevant principles in this area, which I think I hope will be useful in guiding your analysis. Should you ever need to undertake it off, whether to make a complaint of bias or how to resist a complaint of bias when it interacts with the links between a judge and participants, in particular legal representatives? So what was Vanderbilt all about? This case was a trademark dispute in the Intellectual Property and Enterprise Court. Off the high court, it pitted a pet food chain vendor against a Japanese style restaurant chain, Andi. They were in dispute over the trademark name Zuma. Is that you m a one used it for type of pet food on the other company used it for a chain of restaurants. So a bit off a An unfortunate clash, you could say now, Miss Vanderbilt's Hades. In the context of proceedings in the intellectual property and a corrupt enterprise, courts not had any representation. She was a little litigant in person. And on the other side, Waas, a queen's counsel. So silk Onda, junior barrister and solicitors. So it was pretty much as uneven in terms of legal representation as it gets now. The judge who was due to here Miss Vanderbilt's application for summary judgment, was recorded Campbell QC. And during that hearing, Miss Vanderbilt had applied to record a Campbell, asking him to recuse himself and two step aside for another judge to take his place. The basis of Miss Vanderbilt's concerns was that recorded Campbell was in the same chambers as On was a practising barrister, no less in the same chambers as the lead barrister that she was against recorder. Campbell had fully disclosed this association to miss Vanderbilt's ahead off the hearing, something which was actually quite fortunate, so Miss Vanderbilt had discovered it before she came into court. She argued that there was a real possibility of bias because off the what she assumed to be the close business relationship between the judge on the barrister presenting for the other side, and she had also made some very serious allegations off misconduct against her opponent, lead barrister. This added a bit of an extra complicating factor to the analysis because, as you can imagine, in circumstances where a party is saying there's unfair bias on the basis of a link between the judge and a barrister, that unfairness is only going to be exacerbated. If the proceedings concern serious allegations against that barrister and the judge will be in a position or will be invited to make factual findings that could have a real effect on the professional conduct and regulation off that barrister. So there were some serious concerns, as expressed by Miss Vanderbilt. However, I should add that the allegations of serious misconduct that she had made against the lead barrister had Bean dismissed on the facts by a different judge. So not record of Campbell QC. And in fact, the explanation that that other judge gave was that Miss Vanderbilt had unfortunately, misunderstood some of the dynamics of court procedure and the rules that applied. So recorder. Campbell QC did not uphold Miss Vanderbilt application for recusal. He concluded that he did not have to recuse himself. Andi went on to decide the summary judgment application. Miss Vanderbilt was not content with Recorder Campbell hearing. Her application searched. So she applied to the courts off appeal, and permission was granted. When she went to the Court of Appeal for the substantive appeal hearing, she actually asked Lord Justice Floyd, who was hearing at one of the judges who is hearing the appeal, to recuse himself a swell now The reason for that was because Lord Justice Floyd had previously refused Miss Vanderbilt permission to appeal against the outcome off her trial, part of which she won and part of which she lost. But she was appealing in any event, against the part that she lost well, Justice Floyd refused to recuse himself his response to miss Vanderbilt's application for him to recuse himself. Was that the fact that a judge has decided a previous application in a an appeal aunt has decided that adversely does not then logically mean that the judge must recuse themselves from any further hearings in the same case, the porter milk it McGill tests and the fair minded and informed observer that it created doesn't have this assumption that just because a judge refused an application on some issues means that they will necessarily have prejudged any other issues different issues in subsequent applications that are made by the same party. And however there is a qualification to that, which is that if a judge has expressed a concluded view on issues which overlap with a further application, then in those circumstances that may well tip the balance in favor of that judge recusing themselves because they might feel either consciously or unconsciously fixed by those previous findings that they've made on a previous application. Now the Court of Appeal then turned to the substance of Miss Vanderbilt's appeal against recorded Campbell's refusal to recuse himself, and it provided some limited at general guidance on principles to be followed. In cases like this, the Court of Appeal didn't wish to lay down any sort of general rule about a judges needing to recuse themselves if they happen to be sitting in a case where a barrister for one of the parties is also in the same chambers is there and where a litigant complains about that, that would be simply unworkable because it happens so often given the relatively small size of the legal community, particularly in specialist areas. And so, in order, not toe cause much disruption to those areas. There's no default rule that judges have to recuse themselves in such circumstances. But what more Justice Floyd did has reminded us that recusal and bias are highly fat sensitive issues. Andi, it's not difficult to think of certain cases where a judge, a judge's links to a barrister in a case may well crossed the line on give rise to concerns in the mind of a fair minded and informed observer as to the real possibility off bias. So a few key points to take home from this case then include the fact, obviously, that the appropriate thing to do where you have concerns that there is a real possibility of bias on the part of a judge arising from a connection with a barrister or a lawyer or even a participant in the case is to make a timely application for the judge to recuse themselves and for a different judge to take that place. There are some circumstances. The Court of Appeal recognizes this. There are some circumstances where a professional business connection between a Judge Onda barrister acting in a case may well require a judge to recuse themselves on one of those examples, or one of the scenarios in which it may be appropriate is where a barrister is acting on a conditional fear arrangement. The C f A. Where a barrister is honesty. FAA. It may not be appropriate toe have a judge from the same chambers deciding that case in order to avoid the perception or the risk that the judge may appear toe have a financial interest in the outcome of the case. Bear in mind, of course, that chambers are effectively umbrella groups off self employed independent barristers whose fees go into a centralized pot of money and which then goes took towards the central administration. Costs off that chambers, or part of it goes, goes into that. And so if you've got a judge who's in the same chambers, a barrister whose on the C f A. The risk is that the judge on a conscious or unconscious level may well be a bit more lenient or sympathetic towards that barrister, because that judge themselves may well benefit financially. I either chambers will benefit financially from a positive financial outcome or put the other way that they're they're chambers might suffer if a negative, financially adverse outcome is reached against that barristers side off the case. I either barrister, may get no pay at all for a substantial amount of legal work. So the administration of justice requires that these considerations and financial interests should play absolutely no part. What, so ever conscious or unconsciously in the minds of independent and fair judges who are determining the cases in the civil court system, or indeed, in any court system. So it's important when a barrister is acting on a C f A. And there's a professional association between that barrister and a judge that these issues are ventilated and are sorted out early on. Otherwise they can lead to disruption. They can lead to appeals arising afterwards if it comes to light after then, and further another issue that crops up in invent abilities. This complicating factor that where, for instance, proceedings include allegations off serious misconduct or of criminal conduct against a legal representative or barrister in the case. And where there is a professional connection between a judge on that barrister who has been on the receiving end of such allegations then that may mean that it is appropriate for a judge to recuse themselves if that judge will inevitably have to make findings of fact on those allegations off misconduct now. Luckily in Vanderbilt, there was no need for a recorder Campbell to make findings on those allegations against the barrister in his chambers because those allegations have already being dismissed, fortunately by another judge. But if there are lies allegations off this nature. And if there is that professional business link between the judge and the barrister again, those factors might point strongly towards earning on the side of caution and a judge recusing themselves from that case. Now, finally, I want to pick up on a theme which runs through this case, and that is the importance off transparency off judicial transparency. Although the Court of Appeal didn't address this expressly in Vanderbilt, it is, I think, an issue which is very much in the in the subtext. Andi, an important issue for practitioners on for judges alike. My opinion is that there is an argument and a strong argument that lawyers and judges are under a duty to disclose in a timely manner any significant past or present professional business connections between them. Onda a person deciding the case so between judges and lawyers or vice versa, particularly where there is a litigant in person involved on where the perception off bias could be away, that more serious and sinister if these links are not brought to light. Early in Vanderbilt, the judge in the first instance, expressed some concern at the lack of disclosure by the defendant's lawyers about the links between their barrister, their lead barrister and recorder, Campbell QC And I would suggest that really, what we need to be aiming for is for sufficient notice to be given to any party that wishes to make representations or who might make representations about bias or recusal. Give your opponents enough time to consider there position if there is a risk off bias. And that only seems fair because in other contexts in other cases, parties have Bean criticized in the past for failing to make an application for recusal or failing to seek postponement off a trial because of their concerns around bias. So if the expectation is that the complainant needs to act early, the complaint can only act early. If they are fully informed about the connection that exists between the party on the judge. Judges are expected by law to be transparent about these issues. In fact, ideally, the way the system operates and should operate is that even before a judge is assigned to sit on a trial, that judge or two as a first concern satisfied themselves that there are no conflicts of interest, that they have no previous connect significant connections or current significant connection that may well disqualify them from being a fair decision maker. In that case, in the case of what's and what's which I've talked about earlier, in Part, one makes important comments to the effect that judges are expected to be transparent about these connections. And, of course, the safeguard that's built into the bias test importer and McGill, that of the fair minded and informed observer only really operates effectively if the observer can be informed. And so judges need to not only disclose the connections that exist but also the content off in the character of those connections the extent of the relationships, how long they've been going on on give enough detail to the parties that they can actually make sensible representations that go to the test importer and McGill. And that guidance comes from the family law case off re L. B in brackets, Children 2010. Again, the full citation is in the reference sheet. The judge occupies a position of privilege, occupies the most powerful position in the case, but also has often the monopoly on the information about their connections with any participant in the proceedings. And so the expectation is that judges should disclose that information. They shouldn't disclose too much information, though, and that that actually happened in the case of Resolution Chemicals, which I mentioned in the first part of this weapon, are Siri's. In that case, there was an extensively detailed, um, history that was set out by the judge in the case as to that judges association with an expert witness in the trial, which the judge was decided now that was so, so detailed a history that it went back several decades and included glimpses into the judge's university days and every encounter since then, and every context with almost forensic detail. Now, the Court of Appeal in Resolution Chemicals advised, That's a little too much too much information. Stick to what is necessary and what is relevant to the complaint of bias, and that will be sufficient cause if you give too much information about the connection that then overcompensates, Andi could raise further questions and further lines of inquiry and suspicion. Andi, effectively the parties and the judge will never see the end of end of that particular tunnel, so sufficient information, but not too much is required from judges on, I would say exactly the same obligation or to apply to legal representatives, barristers and solicitors in the case who may have these sorts of connections. Thank you so much for listening to this slightly longer webinar video on bias on in particular on links between legal professionals and judges. I hope it's been useful and interesting for you. Let me know if it has give it a good rating. If you feel that way inclined rate it, however you wish on, I will see you in Part three, in which we look at a recent case applying this notion off unconscious bias. Look at some of the recent developments in there, but also importantly, we're going to be looking at some key practical tips on bringing appeals and complaints related to recusal and how to ensure that you win or ensure that you can assess the merits of such applications accurately and advise your clients accordingly. So thank you again for listening. I'll see next time in Part three. Take care
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