The Court of Appeal held that there had been deficiencies in the first instance judgment in this case which justified the remission of the matter to the High Court for a re-trial. Although it was not therefore necessary to decide the issue, the Court of Appeal also considered whether there had been apparent bias on the part of the judge. It had been alleged that there had been apparent bias here because of the judge's hostility towards the barristers' chambers representing one of the parties. On the facts, the Court of Appeal concluded that the argument of apparent bias had not been made out.
The Court of Appeal stressed that the test of the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant: "We have little doubt that most, if not all, litigants represented by a member of [the relevant] Chambers… would prefer to have their case heard by another judge. We are prepared to accept that some, indeed many, might have very strong feelings on the subject. But the litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business. Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded". Furthermore, even if a judge is irritated by, or shows hostility towards, an advocate, it does not follow that there is a real possibility that it will affect his approach to the parties and jeopardise the fairness of the proceedngs.