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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Taylor v Lawrence [2003] QB 528

LORD WOOLF CJ: [60] While before the Pinochet litigation an allegation of bias in the court was a rare event, such complaints are now becoming increasingly prevalent. In Locabail...after hearing a number of appeals at the same time this court sought to give guidance as to the principles which should be applied. Fortunately, subsequently, in a speech of Lord Hope of Craighead in Porter v Magill...the House of Lords has put to rest the conflicting views as to how the test in cases of apparent bias should be expressed. It can now be said that the approach should be:

'The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.' (See Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at 727 (para 85).)

[61] The fact that the observer has to be 'fair-minded and informed' is important. The informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction. Those legal traditions and that culture have played an important role in ensuring the high standards of integrity on the part of both the judiciary and the profession which happily still exist in this jurisdiction. Our experience over centuries is that this integrity is enhanced, not damaged, by the close relations that exist between the judiciary and the legal profession. Unlike some jurisdictions the judiciary here does not isolate itself from contact with the profession. Many examples of the traditionally close relationship can be given: the practice of judges and advocates lunching and dining together at the Inns of Court; the Master of the Rolls' involvement in the activities of the Law Society; the fact that it is commonplace, particularly in specialist areas of litigation and on the circuits, for the practitioners to practise together in a small number of chambers and in a small number of firms of solicitors, and for members of the judiciary to be recruited from those chambers and firms.

[62] It is also accepted that barristers from the same chambers may appear before judges who were former members of their chambers or on opposite sides in the same case. This close relationship has not prejudiced but enhanced the administration of justice. The advantages in terms of improved professional standards which can flow from these practices have been recognised and admired in other jurisdictions. Again by way of example, in the United States they have in recent years established the rapidly expanding American Inns of Court modelled on their English counterparts with the objective of improving professional standards.

[63] The informed observer will therefore be aware that in the ordinary way contacts between the judiciary and the profession should not be regarded as giving rise to a possibility of bias. On the contrary, they promote an atmosphere which is totally inimical to the existence of bias. What is true of social relationships is equally true of normal professional relationships between a judge and the lawyers he may instruct in a private capacity.

[64] A further general comment which we would make, is that judges should be circumspect about declaring the existence of a relationship where there is no real possibility of it being regarded by a fair-minded and informed observer as raising a possibility of bias. If such a relationship is disclosed, it unnecessarily raises an implication that it could affect the judgment and approach of the judge. If this is not the position no purpose is served by mentioning the relationship. On the other hand, if the situation is one where a fair-minded and informed person might regard the judge as biased, it is important that disclosure should be made. If the position is borderline, disclosure should be made because then the judge can consider, having heard the submissions of the parties, whether or not he should withdraw. In other situations disclosure can unnecessarily undermine the litigant's confidence in the judge.

[65] If disclosure is made, then full disclosure must be made. This case demonstrates the danger of making partial disclosure. If there has been partial disclosure and the litigant learns that this is the position, this is naturally likely to excite suspicions in the mind of the litigant concerned even though those concerns are unjustified.

[66] The facts of the present application have to be considered against the facts which were already known to this court when it gave its judgment on 25 January 2001 ([2001] EWCA Civ 119, [2001] All ER (D) 180 (Jan)). On that occasion the court was presided over by Peter Gibson LJ sitting with Chadwick and Keene LJJ. The relevant facts of which the court was then aware are set out in Peter Gibson LJ's judgment. He stated:

'[14] The second ground of appeal relates to the appearance of bias, which, if established, would mean that the appeal must be allowed. The deputy judge, Mr Lawrence points out, was a client of the claimants' solicitors. That fact was not disclosed until the fourth hearing conducted by the deputy judge on 9 November 1999. The deputy judge did not disclose the fact that at that time he was to meet with persons from the claimants' solicitors on 11 November 1999 to execute a codicil and have it witnessed, that is to say immediately after hearing the closing submissions and the very day before he was to give judgment, and that he was to visit the offices of the claimants' solicitors.

'[15] Mr Lawrence adds to those points a number of other points. They include that the claimants' solicitors acted for the deputy judge first in November 1995 to draft his will and his wife's will; that they drafted a codicil for the deputy judge on his instructions in April 1998; that when rejecting the defendants' application on 21 September 1999 relating to whether Judge Viljoen should conduct the trial, the deputy judge did not mention his relationship with the solicitors, as he had not done at the time when the deputy judge was hearing the evidence of Mr Moore, nor did the deputy judge mention that relationship when he rejected the application for summary judgment on 28 October, although it is clear that he was by then aware who the claimants' solicitors were; that the deputy judge, in late October or early November 1999, arranged with the private client partner who had drafted the will and codicil that that partner should prepare a further amendment to the wills of the deputy judge and his wife and arrange to call on the solicitors to execute the further codicil on 11 November; that although the deputy judge at the start of the hearing on 9 November told the parties that the claimants' solicitors had prepared his will and held it, he had not revealed anything further about his relationship with the solicitors; so that when the defendants were asked, as they were, together with the claimants' counsel, whether the relationship that was revealed between the deputy judge and the claimants' solicitors was of concern to them and obtained their acknowledgement that it was not, a less than full account had been given to the defendants.

'[16] Mr Lawrence further points to the fact that on 10 November counsel for the claimants, Mr Cowen, was approached by either the judge, or the judge's clerk, or the usher-Mr Cowen cannot remember which-in the area outside the robing room and was told of the judge's intention to impose a timetable for the trial as a whole and was asked to pass on that statement to Mr Lawrence, which Mr Cowen did immediately. That, Mr Lawrence says, was an approach made by the deputy judge to counsel for the claimants not in the presence of the defendants.

'[17] Mr Lawrence further points out that when the visit to the claimants' solicitors took place on 11 November for the deputy judge and his wife to complete their codicils, their signatures were witnessed by a partner in the claimants' solicitors and a secretary who had worked in the litigation department for six years and whose initials had appeared on some correspondence in the case. Mr Lawrence made vigorous protests over this. At the conclusion of the judgment he sought the deputy judge's assistance as to whether he had the basis of a complaint against the deputy judge for not telling the defendants of the deputy judge's association with the claimants' solicitors. Not surprisingly, the deputy judge did not proffer such advice. But Mr Lawrence has complained to the Lord Chancellor, who has investigated the matter. No doubt on the basis of what the Lord Chancellor was told by the deputy judge, the Lord Chancellor, in a lengthy letter to Mr Lawrence dated 7 April 2000, deals with the various matters of complaint, but rejects all of them. However, in that letter-and Mr Lawrence has drawn specific attention to this-the Lord Chancellor says of the occasion when the deputy judge, with his wife, called at the offices of the claimants' solicitors: "He spoke to nobody who had any connection with the case he was hearing, and he has given me his absolute assurance that at no point has he discussed your case, or indeed any case whilst he has been hearing it, with the solicitors."

'[18] The deputy judge has set out in a letter to the Civil Appeals Office his reaction to the complaints of Mr Lawrence. He says that before 11 November he had not met either the partner or the secretary who witnessed his and his wife's signatures on the codicil, that the full extent of the deputy judge's association with the solicitors was in relation to the preparation and execution of the will and the two codicils, that he knew no partner or other employee of the solicitors personally, that he did not regard them as his personal solicitors as other firms in the City had acted for him, and that the claimants' solicitors were not his executors, trustees and administrators. He says that the solicitors were instructed because they were a large firm in Watford, where he was sitting, and he wished to save going to the City. He further says that he does not consider that there was any conflict of interest and that at the time when he heard the evidence of Mr Moore, he had no idea who were the claimants' solicitors. The deputy judge was a circuit judge from 1978 to 1997. The Lord Chancellor authorised him to continue to sit, even though he had reached the age of 73 at the beginning of November 1999. Mr Lawrence at one time was suggesting that the deputy judge had a conflict of interest; but that, in my judgment, was unsustainable. It is not suggested that the deputy judge was interested in any way in the outcome of the litigation . . .

'[20] It is not altogether clear precisely what was said by the deputy judge to the defendants and Mr Cowen on 9 November in the deputy judge's room at the start of the case. Mr Lawrence has told us that the deputy judge said, or gave the impression, that his relationship with the claimants' solicitors over his will had ended some time previously. There can be no doubt that the defendants were told that the solicitors continued to hold the deputy judge's will. There is also no doubt that the deputy judge did not indicate that he would be meeting at least two people from the claimants' solicitors for the execution of his will. We are told by Mr and Mrs Lawrence that the deputy judge said that he could not remember the name of the partner concerned.'

[67] The response of the court to those facts was:

'[21] What then is the fair-minded and informed observer to make of this? Is it, as Mr Lawrence submits, that the deputy judge was seeking to conceal his true relationship and that he had something to hide and indeed was leaving a misleading impression? Mr Lawrence submits that this is so. He points to the fact that the deputy judge for a long time was not prepared to reveal the names of the two witnesses to his codicil when it was executed on 12 November. He says that the deputy judge ought to have inquired as to who those persons were, and if he did not know that one of the persons witnessing his signature worked in the litigation department and had been involved in some capacity in correspondence with the Lawrences, he should have made it his business to find out and should not have misled the Lord Chancellor into making the statement which he did.

'[22] It seems to me that the fair-minded and informed observer would recognise that every judge lives in the community and that in his private life, away from his judicial life, he may need to use the service providers, including solicitors. That observer would also appreciate that solicitors, by the very nature of their work, have many clients the affairs of each of whom must be kept separate from those of another client. The use by a judge of the services of a firm of solicitors for his personal purposes, such as for drafting his will, would not, I think, give rise to any expectation, or even any suspicion, in the fair-minded and informed observer that the judge in his judicial capacity would, by reason of that connection over his will, be untrue to his judicial oath and favour another client of those solicitors. The observer would take note of the fact that at the time when the deputy judge heard the evidence of Mr Moore he was not aware who were the solicitors of the claimants and that, having heard that evidence, the deputy judge was the obvious person to complete the hearing of the trial. Indeed, if he had stood down, there would at least have been a risk that Mr Moore's evidence would have to be taken again in front of another judge, thereby adding disproportionately to the costs of what is essentially a very minor dispute. The observer would take note of the fact that the deputy judge volunteered the information that the claimants' solicitors had acted for him in preparing his will and that the deputy judge had obtained the express confirmation of the parties that there was no objection to him continuing to preside in the case. The observer would, in my view, have attached particular importance to the fact that the will, as the deputy judge told the defendants, was being kept by the claimants' solicitors. That in itself would indicate that there was a continuing relationship with the solicitors and that it was possible that the will might need to be altered in some way (and codicils are frequently made after a will has been executed), when probably there would be contact between the deputy judge and those solicitors. As the deputy judge obtained confirmation from the defendants that despite his connection with the solicitors over his will there was no objection to him continuing to sit, the observer would reasonably regard the completion of a codicil, which the solicitors had been asked by the deputy judge to prepare, as within the reasonable scope of what had been cleared with the parties.

'[23] The witnessing of the signature of the testator on a testamentary document, as the informed observer would know, is a mere ministerial task, and the fact that a secretary in the litigation department of the solicitors happened to be available to be such a witness is in itself neither sinister nor significant. The observer would note that the deputy judge has made clear that he did not discuss the claimants' case against the defendants when he went to complete his codicil.

'[24] The passing of a message to the claimants' counsel by the deputy judge, or the court usher, or the deputy judge's clerk would not, in my view, be regarded by the observer as of any significance whatsoever. There is no evidence that the deputy judge was consulting Mr Cowen in passing that message to Mr Cowen and Mr Lawrence. I have already stated what Mr Cowen has said occurred. In my judgment, it is impossible to regard that incident as indicating any appearance of bias.

'[25] It is unfortunate that in the letter to Mr Lawrence from the Lord Chancellor a factual error has been made in the sentence which I have cited. But the mere fact that a witness of the deputy judge's signature to his codicil was a secretary who had some connection with the case, in that her initials appear (with the initials of another) on letters to the defendants in relation to this case, would not appear to the fair-minded observer to be of any importance. Nor, in my judgment, can there possibly be some sort of duty on the deputy judge to have investigated precisely what functions were performed in the affairs of the claimants' solicitors by a mere witness to his signature.

'[26] Looking at the matter objectively, I am wholly unable to see that the fair-minded and informed observer would conclude from the various matters to which Mr Lawrence has attached importance that this was a case in which there has been an appearance of bias. For these reasons, therefore, I do not accept his arguments on this ground.'

[68] We respectfully endorse that approach....

[70] The new evidence upon which the Lawrences would now seek to rely is the fact that it is now known that the judge was not rendered a bill for the work which the solicitors carried out on his behalf. Their explanation for this is that the work was so modest it would not have been economic for them to render an account, though it is right to note as Mr Lawrence points out, that on a previous occasion they did render an account for a relatively nominal sum.

[71] It is forcefully urged by Mr Eder, in submissions which were endorsed by Mr Lawrence personally when we allowed him to make short oral submissions to us, that the conduct of the deputy judge was 'outrageous'. The fact that disclosure, having been made in part, was not followed by full disclosure was described by Lord Chancellor in the correspondence as 'unfortunate'. We have already indicated the undesirability of partial disclosure. This undesirability is underlined if the disclosure which is made appears to be made reluctantly as happened here. No doubt in Mr Lawrence's mind everything was given a more sinister twist because he would have preferred another judge to have tried the case. He had already made an application, not based on bias, for the case to be heard by another judge which was refused by the deputy judge.

[72] However, we have not only carefully considered the 'new evidence' but we have also reviewed the facts as a whole, applying the now established test for bias, and having done so we do not accept that any case of apparent bias on the part of the judge is made out.

[73] We regard it as unthinkable that an informed observer would regard it as conceivable that a judge would be influenced to favour a party in litigation with whom he has no relationship merely because that party happens to be represented by a firm of solicitors who are acting for the judge in a purely personal matter in connection with a will. There is no reason to doubt the explanation for a bill not being rendered. There is no evidence that the judge knew that this was to be the case, but even if he did, it would not alter our view.

[74] This is not a situation where we would have given permission for the new evidence to be considered if permission had been sought in accordance with the procedure set out in [56], above. The judge was not required to raise his personal relations with the solicitors and it was a mistake to do so. After he had made that mistake, his subsequent conduct fuelled the Lawrences' suspicions. Regrettably the Lawrences' response to what has happened has been a wholly disproportionate suspicion. They are not in a position to be objective, as they cannot accept a court could decide this unfortunate litigation against them unless there was bias.