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Judge who told barrister she “did not need to lie” was not biased

Hearing failure: Clear that judge misheard

A judge who accused a barrister of telling a lie when she had misheard what was said did not give rise to a conclusion of apparent bias, the employment appeal tribunal has ruled.

Lady Wise said “the use of intemperate or infelicitous language by any judge is not something that any appellate tribunal could condone”.

But she continued: “A distinction requires to be drawn, however, between careless or tactless expression on the one hand and an appearance of bias on the other.

“Set in context, I conclude that the employment judge’s remark falls into the former category and that is how it would be regarded by a fair-minded informed observer.

Balakumar v Imperial College of Health Care NHS Trust [2018] UKEAT 0252_16_2509 [1] was handed down in September but only published last week.

In January 2016, the London Central Employment Tribunal – Employment Judge Gay presiding and sitting with lay members – dismissed the claimant’s claims of unfair dismissal, pregnancy or maternity discrimination, race discrimination, and disability discrimination by association.

On the third day of the hearing, after two unsuccessful applications – the second of which was to admit additional late evidence – the claimant’s counsel, Shevani Jegarajah, sought a short adjournment to explain the ruling to the claimant.

Though the respondent objected to this, the tribunal granted it. On the resumption, Ms Jegarajah sought a further adjournment so that she could appeal the decision on the second application.

However, Judge Gay misheard and thought Ms Jegarajah said she had actually asked for the previous adjournment so she could file an appeal. The judge responded: “You could have told me, there is no need to lie.”

The barrister objected to being called a liar and the tribunal then explored what had happened.

Judge Gay said she had meant to indicate that the tribunal did not take offence at being told that its judgment was to be impugned by way of an appeal, and that Ms Jegarajah could have told it the real reason without fear.

The judge expressed regret that the misunderstanding had occurred, and the tribunal then decided it should continue with the hearing.

A statement from one of the lay members said it was made “quite clear” to Ms Jeyarajah that the comment arose from the judge mishearing what had been said and believing that she had misled the tribunal in her reason for asking for the adjournment.

“This was against a background of Ms Jeyarajah’s own conduct of her case before that point which had involved multiple applications and submissions of little or no merit and her manner which was exceptionally assertive to the point, at times, of appearing aggressive and hostile to the tribunal.”

The question before the EAT was whether the use of the word “lie” in the context was so inappropriate and unfair that a fair-minded observer would conclude that there was a real possibility that the judge was biased.

Noting there had been problems earlier with the bench hearing what was being said, Lady Wise concluded: “The use of the word ‘lie’ was both inappropriate and regrettable, but was based on a subsequently and promptly acknowledged error as to what had been stated…

“The judge was required to confront what she thought was an attempt to mislead. She should have done so more gently but her challenge was not incidental or sarcastic; it was highly germane to the issue before her and was said in error.”

She also found that the expression under attack contained “no gratuitous or incidental offence”.

“In all the circumstances, I have reached the view that the fair-minded informed observer would conclude that the judge’s remark was uttered during an unfortunate episode in the context of a longer and difficult case in which progress had been impeded by a number of unusual and correctly refused applications, after very little evidence had been led.

“Placed in that context, she would have concluded that this single inappropriate remark did not raise any general or real possibility of the appearance of bias. The appeal is dismissed.”