12 July 2018Print This Post

“No need” for judge who rejected permission to appeal to recuse herself from hearing

Central London County Court: Judge did not show her mind was closed

There was no need for a judge who rejected permission to appeal on paper to recuse herself from the full hearing, the Court of Appeal has ruled.

Lord Justice Patten said Her Honour Judge Baucher in Central London County Court had “done no more than indicate in her order” that the appeal would have no real prospect of success and there was “no other compelling reason” to grant permission.

“That was the test she was required to apply but there is nothing in the terms of her decision to indicate that she would not be open to further argument and persuasion were the matter to be restored to her for an oral hearing or (as it happened) were she assigned to hear the full appeal”.

Patten LJ said the case was “the first occasion on which the Court of Appeal has been asked to consider the possibility of apparent bias in relation to an appeal heard by a single judge”.

The court heard that Nigel Broughal was injured at work in 2011. He sued his employer for damages in 2014 but later that year the company was struck off the register and dissolved, so the action continued against insurers.

Mr Broughal failed to provide disclosure or inspection of medical records and failed to comply with a court order to provide the defendants with mandates for the release of those records by 19 February 2016.

In August 2016 Deputy District Judge Ghallingham refused relief from sanctions, assessed the damages at nil and refused permission to appeal.

The following month HHJ Baucher refused appeals on the papers against the DDJ’s order and the original order to provide the mandates.

Patten LJ said Mr Broughal then exercised his right to have the matter reconsidered at an oral hearing and was granted permission to appeal in respect of the order.

At the start of the appeal hearing in March 2017, Mr Broughal’s counsel applied for HHJ Baucher to recuse herself on the grounds of apparent bias in refusing permission to appeal on the papers. The judge refused the application.

“She explained that, after being notified by telephone of the possibility of the application being made, she had made enquiries as to whether the appeal could be heard by another judge but, due to problems caused by illness, no other judge was available.

“Having considered whether the fair-minded and informed observer would take the view that her previous involvement in the appeal might create a real possibility of bias, she concluded that it would not.”

Delivering judgment in Broughal v Walsh Brothers Builders and Another [2018] EWCA Civ 1610, Patten LJ said: “The sole ground of appeal is that, having originally refused permission to appeal, Judge Baucher would be taken by the informed observer to have approached the appeal hearing with a predisposition towards dismissing the appeal either because she had closed her mind to the appellant’s case or because she would have been inclined (whether consciously or unconsciously) towards reaching a conclusion that was consistent with her earlier order.”

Patten LJ said the Court of Appeal decided in Sengupta v Holmes [2002] EWCA Civ 1104 that the inclusion in a three-judge court of an appeal judge who had earlier refused permission to appeal on the papers did not require that judge to recuse himself.

“The decision in Sengupta is therefore binding authority in my view for the proposition that the prior involvement of a judge at the permission stage involving a consideration of the papers does not disqualify that judge from hearing the substantive appeal (or, for that matter, an oral renewal of the application), unless the judge has expressed his views in such a way as to indicate to any fair-minded lay observer that he has reached a concluded view and is unlikely to be open to further argument.”

Patten LJ said many of these cases would be “highly fact-sensitive and will not necessarily involve the use of extreme language or behaviour” but they would all be cases where it was “readily apparent” that the judge appeared to have come to a fixed and concluded view on the merits.

“These cases are by their very nature likely to be rare. There is certainly nothing inherent in the process which is inimical to the possibility of a fair oral hearing by the judge who has made the paper decision.”

Patten LJ went on: “With the benefit of oral argument, the judge will be open to being persuaded that his or her initial view was wrong. This is an everyday feature of litigation both at first instance and in the Court of Appeal.”

He dismissed the appeal. Lord Justices Moylan and Hamblen agreed.

By Nick Hilborne


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