Judge who disparaged one party’s counsel “did not give appearance of bias”


Bias: Judge was a “difficult tribunal”

A judge who was “snide” and disparaging to counsel for one of the parties before her did nonetheless not give the appearance of bias, the High Court has ruled.

Mr Justice Hildyard said the conduct of Her Honour Judge Baucher was prompted by the “state of considerable disarray” that the claimant/appellant’s case was in, with clear failures to abide by the rules.

“This approach and the resulting deficiencies in the appellant’s case inevitably caused practical and evidential problems throughout the hearing which inevitably affected the judge’s approach and would have had to be taken into account by an informed observer,” he said.

Hildyard J said the case raised the “interesting and more general question as to the parameters of the sometimes fine line between robust case management and disruptive judicial intervention such as to give rise to the risk of giving the appearance of bias”.

M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) was a dispute over a commercial tenancy that went against the claimant.

M&P sought to set aside HHJ Baucher’s order on the basis that her conduct of the trial was unfair and/or would have led a fair-minded and informed observer to conclude that there was a real possibility of bias on the judge’s part.

It was, Hildyard J wrote, “notable (and quite unusual)” that M&P had not appealed the judgment itself; its challenge was solely to the trial process.

The appellant had changed solicitors several times, and the solicitors who conducted the trial had been instructed late, as had been its counsel, Emily Windsor.

Hildyard J described various comments made by the judge as snide, acerbic, tetchy and hectoring.

Looking at the cross-examination carried out by Ms Windsor, he said the judge was “excessively interventionist, was disparaging and did unsettle counsel”.

He continued: “At times, the judge might have been perceived to be intent on giving Ms Winsor a stern lecture on the do’s and don’ts of cross-examination.

“Her repeated references in the course of the proceedings to a potential sanction in costs if the state or conduct of the appellant’s case occasioned delay was oppressive and, in my view, inappropriate and intimidating.

“Such conduct made worse an already difficult position for Ms Windsor for no judicial benefit in the end. The judge was plainly a difficult tribunal before which to advance an ill-prepared and disorganised case. Ms Windsor’s position was unenviable and invidious.”

Hildyard J said disparaging counsel was not only “unnecessary and discourteous”, but “may also build in a witness a feeling of advantage, and of being able to treat counsel (and so ultimately the court) with less rigour and possibly less candour.

“In other words, it may affect and impede the presentation and testing of evidence, which is the main focus and primary objective of a witness trial.”

Against that, however, Hildyard J said that, in almost every case, the judge’s interventions were “in strict terms justified”.

He explained: “Ms Windsor’s examinations were not always precisely focused. She should have had, but did not have, at her finger tips the bundle references to enable the witness to focus on the question, sometimes because the bundles were disorganised, sometimes because deficient.

“She was sometimes reduced to positing possibilities for which there was little, if any, basis in the evidence…

“There are, regrettably, clear signs that she had not had time to identify with sufficient precision what evidence was really necessary to put or elicit in order to establish her client’s case, almost certainly because she and her solicitors were instructed far too late in a case to which no order had been brought.”

He said a more sympathetic tribunal might have assisted her overcome the inherent difficulties in her case.

“But, on the whole, I have concluded that, though difficult and unsympathetic, even sometimes disparaging, the judge’s interventions and criticisms of counsel were not the real reason preventing the appellant’s cross-examinations developing momentum and cogency…

“The true source of difficulty was the state of the appellant’s case, not the trial process.

“Likewise, in my judgment, neither what the judge said nor the way she said it would have reasonably given rise to the perception of a real possibility of bias, as distinct from the impression of a difficult and exacting judge with little or no real sympathy for the serious and obvious difficulties that counsel faced.”

Hildyard J stressed that he was making no criticism of Ms Windsor given the circumstances, and noted that HHJ Baucher had herself comment that the barrister had done her “very level best” given the position she was put in.

Hildyard J said he thought “long and hard” before criticising the judge. “I appreciate that my feeling that a difficult trial could and should have been managed with more regard to the objective of assisting each party to advance its best case is ultimately subjective.”

He concluded: “In the round, and notwithstanding the reservations and concerns I have felt it necessary to express, I have concluded that, having regard to the latitude that must be afforded to a judge at first instance in order to allow them to manage their case, the shapeless form of the appellant’s case as presented to her and the active judicial management it invited, and the robustness and persistence required and expected of counsel, the judge’s conduct of the trial was not such as to render the process unfair.

“Nor was it such as would have led a fair-minded and informed observer, having considered the relevant facts and circumstances, to conclude that there was a real possibility of bias.”




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