Case Alert - [2018] EWCA Civ 468

Court of Appeal criticises trial judge but does not find allegation of apparent bias has been made out

The trial judge's daughter did a mini-pupillage at the chambers of Mr Varma, counsel for one of the parties in this case. Mr Varma told the barrister on the other side (Mr Modha) about this when a case he was working on was listed before the judge (and no objection was raised by Mr Modha). At the end of the hearing on the first day, the trial judge asked to speak to Mr Varma in private about a personal matter. During that meeting he discussed his daughter and then asked Mr Varma to pass on certain comments about the other side's case to Mr Modha.

Following judgment, the appellant alleged that the judge ought to have recused himself by reason of apparent bias.

The Court of Appeal was critical of the trial judge's conduct: when handling cases, judges need to bear in mind not just the hypothetical fair-minded observer, but actual litigants "who cannot be blamed for lacking objectivity". The trial judge should not have requested a private conversation and should not have expressed views to only one side about the merits of the parties' respective cases.

However, the Court of Appeal found that there was no apparent bias here. It was held that the mini-pupillage could not sensibly have been thought to give rise to any risk of bias. The request for a private conversation had been tactless but had taken place with the knowledge and consent of Mr Modha. Furthermore, it had been perfectly proper for the judge to express preliminary views about the merits of each party's case. He had been "misguided" in not expressing those views in open court but it was "of critical importance that the judge, in making the comments that he did (i) made it clear that his purpose was to assist both parties in preparing their closing submissions, and (ii) specifically asked Mr Varma to pass on the comments to his opponent (which Mr Varma did). This demonstrates that the trial judge was not giving or seeking to give one party a privileged insight into his thinking which was not being afforded to the other".