Sir Robert Akenhead, with assistance from Omar Eljadi, highlight the dangers of a private conversation between one party in a case and the judge, arbitrator or adjudicator in their article ‘Careless talk can cost cases’ for Building Magazine.
“It is of fundamental performance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” So, famously, declared Lord Hewart CJ. A recent Court of Appeal decision is a salutary reminder for tribunals – arbitrators, adjudicators and even judges – to keep their distance and not talk in private to one side only.
Bubbles & Wine Ltd v Reshat Lusha (March 2018) began life as an unremarkable dispute: the contractor claimed payment of the outstanding contract price; the employer counterclaimed damages for delay and defective works. The case only became noteworthy because of what happened after the trial had overrun, leaving no time for closing submissions. Directions were given for written closing submissions and the production of a list of issues. As the parties got up to leave the courtroom, the judge invited the contractor’s counsel, a Mr Varma, to remain behind to speak about a personal matter. The employer’s counsel, Mr Modha, consented.
The judge and Mr Varma then had a private conversation. It began with the judge thanking Mr Varma and his chambers for hosting the judge’s daughter as a mini-pupil – a fact already disclosed to the employer. The judge then expressed views about the merits of the case, including that the employer’s counterclaim seemed weak, and that the contractor’s claim had evidential gaps. He asked for these views to be passed on to Mr Modha since it might assist with the production of the list of issues.
That evening, Mr Varma reported the conversation to Mr Modha by email. Mr Modha replied noting he would rather the judge had not said anything about the case, but acknowledging he did not think the judge had said anything the parties did not already know, and that it probably did help to narrow down the issues. The next morning the judge emailed the parties giving his account of the conversation. Two aspects of that account were noteworthy: the omission of any reference to the evidential gaps in the employer’s claim, and his suggestion that had the employer’s director not been in the room, the judge would have made his comments about the case in the presence of both counsel.
Mr Modha replied, questioning the judge’s omission of any reference to the evidential gaps in the contractor’s claim and seeking clarification of precisely what had been said. The judge’s first reply said that his recollection was as he had already stated. After further thought, he emailed again to say that he had also expressed similar concerns about the contractor’s evidence, and not just the employer’s counterclaim, but had not made up his mind about either party’s claim. He explained that he had thought it helpful to express the concerns so they could be dealt with in closing submissions.
In the same email, the judge also acknowledged the importance of the court being seen to be impartial and offered to recuse himself if the parties thought this principle had been compromised. Mr Varma responded with the contractor’s view that recusal was unnecessary. After taking instructions, Mr Modha
requested the judge recuse himself on the basis that he made an adverse comment on the case in the presence of only one party’s representative. The judge refused.
The contractor’s claim was mostly successful; the employer’s counterclaim failed. In his judgment, he said his comments to Mr Varma had only been made out of concern that Mr Modha be made aware of evidential weaknesses as quickly as possible, and in an attempt to assist the parties in preparing their closing submissions. He rejected any suggestion of actual or apparent bias. He repeated his claim that he had not made the comments in open court due to the presence of the employer’s director, and a desire not to lead the director to conclude that his mind had been made up. He also noted the cost of a rehearing would have been disproportionate to the sums at stake.
The employer appealed, alleging apparent bias. The Court of Appeal dismissed the appeal, for these reasons: Mr Modha had consented to the conversation; there was no evidential doubt as to what was said; the provisional views expressed were innocuous and did not suggest the judge had reached a final decision before argument; the purpose of expressing the views was to assist the parties and the expression of provisional views is common; the judge had asked for the views to be passed on to Mr Modha; Mr Varma made no submissions in private to the judge; there was no reason to think the judge deliberately sought in his email to withhold his view on the claim.
Despite this conclusion, the court’s criticisms of the judge were forthright. Requesting a private conversation with one party was inappropriate, as it risked fostering an impression of favouritism. Worse was the decision not to confine the conversation to personal matters, and to express views on the merits of the case in the absence of one party. That is particularly damaging where views expressed are adverse to the absent party, who then must rely upon a second-hand account. The court also criticised the judge’s explanations as “unimpressive”. By offering to recuse himself and then refusing, the judge had been “bound to create a sense of grievance”. He should not have offered to recuse himself at one party’s request. Finally, the judge had been wrong to suggest that questions of proportionality, or the fact that he felt the issues had been properly decided, were relevant. The issue was solely one of procedural fairness.