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Recorders, CFAs and the appearance of bias – what are we meant to do?
Smith v Kvaerner Cementation Foundations [2006] EWCA Civ 242
C sued KCF for personal injury but lost. C’s appeal was successful as he didn’t have a fair hearing before an independent and impartial tribunal – not actual bias, but the appearance of bias. What happened?
The client connection
The Recorder said at the outset that he had represented, and was in ongoing litigation with, KCF and their insurers. In fact, he discovered afterwards that it was not KCF itself but companies in the same group. It was common ground that even this meant that he was disqualified from trying the case in the absence of waiver by C. Whilst, on the day, C said that he was happy to proceed, he felt unhappy about the situation after losing. But had C validly waived his right to object?
The chambers connection
The Recorder and both counsel were from the same chambers. This link was discussed by the Court of Appeal but was not held on these facts to be a disqualifying factor.
- C did not argue on appeal that the mere fact that Recorder and counsel are from the same chambers gave rise to the appearance of bias. The Court of Appeal agreed.
- C suggested that where the Recorder is (as here) Head of Chambers and so in a position to affect counsel’s future career, this gave rise to the appearance of bias. The Court of Appeal disagreed.
- C suggested that, where counsel’s earnings could be affected by an adverse result, including losing a CFA, the impact on the Recorder’s share of chambers’ contributions could give rise to the appearance of bias. This did not arise in this case, but the Court of Appeal said that they "saw the force" of this argument.
Waiver of the right to object
The Court of Appeal said that for a valid waiver C had to be aware of all material facts and the consequences of the choices and C had to have time to reach an un-pressured decision. The material facts were:
- The connection between the Recorder and KCF
- The availability of another judge (either that day or when the next available date was)
- The judicial oath and the judge’s training to decide matters objectively.
Where C’s counsel was held to have gone wrong in advising C was as follows:
- Comments on the Recorder’s personal integrity. C’s Counsel had endorsed the Recorder to his client, saying that C would get a fair trial with an “an open-minded and objective approach” and “a proper methodical and analytical assessment of his claim”. The Court of Appeal said whilst this praise was no doubt entirely justified, it was inappropriate. There was a risk that this recommendation would put undue pressure on C not to object to the Recorder for fear of slighting both the Recorder and counsel’s views.
- Giving strong advice that the right to object should be waived.
- Referring to additional costs that C’s union would be likely to have to pay if C objected and lost at an adjourned trial.
Decision
The strong advice from counsel to waive his right to object was inappropriate, as the decision had to be C’s. Furthermore C was not told when the case could be tried by another judge and so he did not have knowledge of all relevant information. Therefore C had not validly waived his right to object. A retrial was ordered.
Some thoughts
- CFAs where Counsel / Recorder are from the same chambers
Pending further Bar Council guidance, both sides should be very careful in these circumstances. It is now an open question whether it gives the Recorder a direct pecuniary interest in the outcome of the case (see Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451). Whilst Locabail says that there is a de minimis exception, where the potential effect of any decision on the judge’s personal interest is so small as to be incapable of affecting his decision one way or the other, it says that any doubt should be resolved in favour of disqualification. It is one thing where the barrister’s fees are modest and his lost contributions would be spread amongst members of a large chambers – but what about high fees and / or a small chambers and / or a chambers with financial worries? Some cases are bound to cross the Locobail line.
Does full disclosure of the position to D to allow valid waiver include having to disclose prematurely counsel’s CFA uplift (and therefore in many cases effectively one’s “bottom line” views of the strength of the case)? C may not be happy with this.
- Connection between litigant and Recorder
The scope of the ban on comments on personal integrity is unclear: you can probably answer if your client asks whether the Recorder practises in this field – but the next question is likely to be whether he is pro-claimant or pro-defendant, and answering that question without making comments on personal integrity is going to be difficult. You may have to refuse to answer fully, citing the Smith decision, and the client is likely to feel that he is not being helped in this difficult situation.
The judgment does not note that parties in KCF’s position may have concerns and waiver should sought here too. The automatic response may be to think that KCF would not have objected to a trial with this Recorder – but what would have happened if KCF had lost and then thought that the Recorder “bent over backwards” in C’s favour to avoid being accused of partiality towards KCF? The same point would arise in a CFA case – both sides, not just D, must be happy for the trial to continue, otherwise there is a risk of later unhappiness.
At present, if the case is adjourned to come before another judge, the losing party at the end of the trial will probably end up paying both sides’ costs of the ineffective hearing. Yet it is unclear from the judgment whether costs implications can be discussed at all e.g. where C is privately paying. Common sense would suggest that this must be something that can be mentioned, as the Court of Appeal does say that counsel should advise the client of all the implications of the situation, including the implications of an adjournment. But costs fears may well outweigh C’s fears of an unfair trial, which puts C in an invidious position. Anyway, if the trial adjourns because the only available judge is an unsuitable Recorder, why shouldn’t the Court Service pay?
If either situation arises at court, get a copy of the judgment in Smith faxed to you – and keep good notes!
Tim Petts
12 King’s Bench Walk
May 2006
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