High Court rejects bias allegation against Uber licence judge

Uber: Judge’s husband did not financial interest

The indirect financial relationship that the husband of the judge who granted Uber a licence to operate in London had with the company was not enough to taint her decision, the High Court has ruled.

The Lord Chief Justice, Lord Burnett, and Mr Justice Supperstone also rejected the argument that judges in high-profile cases should have to check whether they or their spouse may have any likely disqualifying interests.

Last June, Senior District Judge Emma Arbuthnot, the Chief Magistrate, granted a 15-month London private hire vehicle operator’s licence to Uber.

Transport for London (TfL) had earlier rejected an application, but by the time the appeal came about, it no longer opposed its grant, and adopted a neutral stance at the hearing.

The United Cabbies Group (London) Ltd (UCG), a mutual society representing Hackney Carriage drivers in the capital, challenged the judge’s decision on two grounds, one of which was bias.

After her ruling, The Guardian claimed that Judge Arbuthnot had withdrawn from hearing further appeals by Uber after an Observer investigation into links between her husband, Lord Arbuthnot, and Uber.

The article reported that Lord Arbuthnot was a former director, now a consultant, of SC Strategy Ltd, described as a private intelligence company. One of SC Strategy’s clients was the Qatar Investment Authority (QIA), a significant investor in Uber London’s parent company.

The High Court recorded that Lord Arbuthnot had provided advice to QIA, but not in relation to Uber.

“At the time of the hearing the judge was aware that QIA was a client of SC Strategy, but she did not know that QIA had any direct or indirect link to Uber’s parent company.

“Neither her husband (upon her checking with him) nor the judge was aware that QIA was an investor in that company at the time she heard the appeal.”

Nonetheless, UCG submitted that the judge was automatically disqualified as her husband’s financial interest in Uber was deemed by virtue of their marital relationship to be that of the judge herself.

That being so, it argued, the judge’s knowledge of the existence of the interest was irrelevant.

“We reject this submission,” the court said. “We do not consider that the facts even begin to show that there was a link between the judge’s interest and the interest of her husband ‘so close and direct’ as to render the interest of her husband indistinguishable from her interest.”

In any case, the argument failed at an earlier stage, the judges said. “Lord Arbuthnot cannot sensibly be said to have a financial interest in the parent company of Uber, and through them Uber in London.

“As a consultant no doubt he received remuneration from SC Strategy which in turn received income from QIA.

“QIA no doubt hoped to receive benefit from capital growth in, or perhaps dividends from, their investment in Uber’s parent company which formed a part of their overall holdings.

“The link between Uber’s global prosperity and Lord Arbuthnot’s remuneration is tenuous, to say the least. He had not advised QIA regarding Uber.

“In those circumstances it is difficult to see how he could have a direct financial interest in the outcome of the appeal.”

UCG raised what the court called the “novel argument” that a judge was obliged to show not only that she had no knowledge of the relevant facts but also that she could not reasonably be expected to be aware of them.

“There is a duty, [counsel] submits, on a judge especially when dealing with high-profile matters of this kind, which have a significant element of public interest ‘to check’ on whether there are any likely disqualifying interests which she should disclose to the parties on the basis that prima facie they may evidence a conflict of interest in respect of which the judge should recuse herself.”

The court rejected this too, saying the argument was inconsistent with the settled case law that it was the actual knowledge of the judge that determined the assessment of apparent bias cases.

Such a duty would also impose “an unnecessary and onerous burden on judges”, the court continued.

“We can foresee considerable practical difficulties if a judge has to research whether his or her immediate family members may have any link with any party in every case over which they preside. We see no warrant for it.”

The court concluded that the circumstances here would not lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased.

“Even if there was an obligation on her to check whether her husband had any direct or indirect association with Uber or TfL, which as we have said we do not accept, there is no evidence that Lord Arbuthnot had a financial interest in the outcome of the case, still less that the judge could have had such an interest.”

The court found that other “tenuous” links identified between Lord Arbuthnot and Uber would not have had any impact.

These included the fact that Laurel Powers-Freeling, the chairman of the board of Uber in London, had worked many years ago at McKinsey with former Conservative leader Lord Hague of Richmond, who worked together with Lord Arbuthnot in politics; indeed, Lord Arbuthnot was his campaign manager in 1997.

Lord Hague is also chairman of the advisory board of City law firm Linklaters, which is “apparently” the fund counsel to Soft Bank Group, which in turn is said to be the largest shareholder in Uber’s parent company.

“Neither she nor her husband knew that Lord Hague was the chairman of the Linklaters advisory group or that Linklaters were fund counsel to Soft Bank Group, if this be so,” the court said.

“The list of tenuous connections unearthed, no doubt as a result of deploying time and energy to internet searching, fall well short of evidence of links that would begin to give a fair-minded observer even pause for thought.

“It reminds one of the game of consequences or even the old song with the lyrics ‘I danced with a man who danced with a girl who danced with the Prince of Wales’…

“We think rather that the evidence relating to these matters illustrates the type of problem that could arise if there was a duty ‘to check’.”

The other ground of appeal was also dismissed.

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