We delivered our quarterly seminar in June and one of the topics was bias in adjudication. It is therefore interesting to see that bias is back in the legal press, this time concerning the High Court Judge, Mr Justice Peter-Smith.

In this recent Court of Appeal case of Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz, the Court was asked to decide if the Judge was biased against Prince Abdul because of a fall out between the Judge and the Prince’s barristers Chambers.

The fall out related to a previous controversy where Mr Justice Peter-Smith voluntarily stepped down from hearing the dispute, Emerald Supplies Limited v British Airways due to a risk of bias.

During the case, which was long and complicated, Mr Justice Peter-Smith’s luggage went missing whilst on a BA flight. He complained to BA, signing his emails in his judicial capacity. When he complained directly to the Chairman of BA he referred to his involvement in the Emerald case and he then raised his luggage complaint with BA’s legal team in the Emerald case. As a result BA’s Solicitors requested he stand down from the case, which he did, albeit reluctantly.

The issue in the current Harb case arose as a result of the British Airways case. The Prince’s barrister was from Blackstone Chambers and following the British Airways case Lord Pannick of Blackstone Chambers had written an article criticising the Judge’s conduct in the BA case.Mr Justice Peter-Smith objected to this and wrote to Blackstone Chambers saying “I will no longer support your Chambers please make that clear to members of your Chambers. I do not wish to be associated with Chambers that have people like Pannick in it”

When Mr Justice Peter Smith’s decision went against the Prince, he appealed on the grounds of apparent bias (as well as other grounds) – essentially claiming, that the Judge found against him because of his attachment to Blackstone Chambers. The Court applied the usual “fair minded and informed observer test” to the facts and decided that the fair minded and informed observer would conclude there was a possibility that the Judge would be biased against all members of Blackstone Chambers, at least for a short time after publication of the article, but without more, they would not conclude that the bias would affect his decision of a case, just because a party was represented by Blackstone.

So, essentially, there was no bias in this instance although the appeal was allowed for other reasons.