CA strongly criticises judge for private meeting with one party’s counsel

Private conversation: Judge made several errors, says CA

A circuit judge was wrong to have a private conversation with one party’s counsel during the trial, but his actions did not amount of apparent bias, the Court of Appeal has ruled.

Deputy District Judge Wallis asked to speak to Rahul Varma to thank him and his then chambers – Lamb Chambers – for giving his daughter a mini-pupillage the previous summer, but then briefly discussed the case too.

He asked Mr Varma, who acted for the claimant, to pass on comments to opposing counsel, Niraj Modha, insofar as it might help both counsel to compile a list of issues. Mr Varma did so later that evening.

The judge said the defendant’s counterclaim seemed weak and the claimant’s case had several evidential gaps.

DDJ Wallis refused a request by the defendant to recuse himself as a result of the exchange, and in the substantive case rejected the defendant’s appeal against an order to pay the claimant £24,000 in unpaid invoices for building work.

After His Honour Judge Freeland QC dismissed an appeal, the defendant appealed to the Court of Appeal solely on the issue of apparent bias.

It argued that, in circumstances where the trial judge had expressed his views on the case to the claimant’s counsel during an unrecorded private conversation without its counsel being present, a fair-minded and informed observer would conclude that there was a real possibility that the judge was not impartial.

Giving the judgment of the court, Lord Justice Leggatt said DDJ Wallis’s first mistake was to request a private conversation with counsel for one of the parties in the absence of the other while the case was continuing.

“It is difficult to think of circumstances in which this would be an appropriate thing to do. It risks fostering an impression of favouritism towards one party’s advocate. It also encourages suspicion in the other party (even if the suspicion is in fact unfounded)…

“For the trial judge to go out of his way, during the trial, ‘personally to thank Mr Varma for his hospitality towards [his] daughter’ was capable of suggesting that he felt a sense of obligation towards Mr Varma.”

The “second and worse error” was to talk about the case “and, more than that, to express views about the merits of the parties’ respective cases”.

Leggatt LJ said he was “distinctly unimpressed” with the judge’s explanation that “I was concerned that Mr Modha should be made aware, as quickly as possible given his professional commitments, of my concern about the evidential weaknesses”.

Leggatt LJ said: “When the conversation took place, the trial had been adjourned for closing submissions and no timetable for these had yet been set. It had further been agreed that, before preparing their submissions, the two counsel would liaise with each other to compile a list of issues.

“It is very difficult to see how in these circumstances the judge’s concern about the perceived evidential weakness of the counterclaim was a matter of which Mr Modha needed to be made aware ‘as quickly as possible’ (whatever Mr Modha’s forthcoming professional commitments).

“Furthermore, the suggestion that the matter was of such urgency that it needed to be passed on immediately and could not wait until the judge was able to communicate with Mr Modha himself late that night or the following morning is – to put it bluntly – absurd.”

There were further errors – DDJ Wallis sent Mr Modha an email the following day recounting his comments, but leaving out those concerning his opponent’s case.

Another email a few days later seemed to suggest that he would recuse himself if the defendant asked him to, but he declined when it did.

However, despite these errors, the Court of Appeal found that there was no real possibility that a fair-minded and informed observer would consider the judge biased.

Leggatt LJ said the mini-pupillage “could not sensibly have been thought to give rise to any risk of bias”, and the defendant had “quite properly” made no objection to the judge hearing the case when Mr Varma disclosed that fact to his opponent before the hearing.

The judge’s comments would have been perfectly proper if made in open court and the defendant had considered them innocuous.

“It is, however, 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.”

NOTE: The original version of this story named HHJ Freeland as the judge whose conduct was under fire, rather than DDJ Wallis. We apologise for the error. 

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