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Howell v Millais (4 July 2007)

Background

The case was an appeal from a decision of Peter Smith J (the judge) made on Friday 29 June 2007 refusing to recuse himself. The first claimant is a Mr Paul Howell, who is a partner in the solicitors firm of Addleshaw Goddard.

The claimants' submission is that this is a case of apparent bias, arising out of exchanges between some members of Addleshaw and the judge in his personal capacity, culminating in two emails which the judge sent to Addleshaw on 26 and 31 May 2007, about a month before the hearing of the recusal application by the judge.

Apparently the judge was invited to enter into a discussion with Addleshaw about the possibility of the judge joining Addleshaw. Between November 2006 and May 2007 there were quite lengthy discussions between AG and the judge. The correspondence included an email from the judge stressing “the considerable advantages of being associated with him as a judge”.

Apparently Addleshaw decided not to proceed with the discussion with an email on 31 May 2007 saying inter alia 'We have concluded after very careful deliberation and with regret that, at this time in the firm's development and mindful of its current investment priorities, we cannot support this innovative prospect'.

The subsequent exchange showed that 'the judge was plainly upset with AG, to put it no higher'.

Counsel to the Appellants wrote to the judge requesting him to recuse himself 'in view of the shortness of time since the discussions ended, the tone of the comments you made in your email 31 May and the fact that a partner in Addleshaw Goddard is himself a party'.

The judge refused, saying, inter alia, he did not know the 1st claimant and, since it would be impossible to suggest that the judge would have to recuse himself whenever Addleshaw Goddard is on the record, he did not see how the shortness of time (or for that matter the passage of time) makes any difference.

Decision

The Master of the Rolls, Sir Anthony Clarke, concluded that it was a case in which a fair-minded and informed observer would conclude that the judge was biased against AG and its partners and that the judge should have recused himself. He said,

“It may well be that the judge became somewhat carried away in the heat of the argument. But for the reasons I have given, I would hold that his attitude throughout, from the emails at the end of May, during the hearing on Friday and in his judgment show that the test for apparent bias is satisfied.”

Legal Principles

In Porter v Magill [2002] 2 AC 357, the House of Lords endorsed the approach set out by Lord Phillips MR in Re Medicaments and Related Class of Goods (No 2) [2001] 1 WLR 700 at [85] as follows:

“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.”

An example of a real danger of bias is where there is animosity between the Judge and any member of the public involved in the case Locabail UK Limited v Bayfield Properties Limited [2000] QB 451 (CA) at 25.

“It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson [2000] 201 CLR 488, 509 [para 53], by Kirby J when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious'.”(Lawal v Northern Spirit [2003] UKHL 35, Lord Steyn)

The 'material circumstances' to be considered by the fair-minded and informed observer will include any explanation given by the judge as to his knowledge or appreciation of those circumstances. The passage of time between the events said to give rise to the apparent bias and the hearing or trial is also a relevant factor.

Extracts of the Exchange between the judge and the Counsel for the Appellants

“Counsel for the Appellants, Mr. Campin: Your Lordship having heard the evidence, I renew my application to you to recuse yourself on the basis that there is a real risk or possibility that your Lordship will not be able to bring to bear, on the determination of the matters in dispute in this case, an open mind and objectivity which is required in the discharge of high judicial office. The reasons that I make that submission to your Lordship are apparent from the terms of the e-mails which were exchanged between you and Mr Twigden and which indicated, or would indicate, to a fair-minded person reading those e-mails, that your Lordship, having made an unsuccessful job application --”

“MR JUSTICE PETER SMITH: I made no job application. They invited me. That's your first point failing. There is plainly a big difference, Mr Crampin.”

...

“MR CRAMPIN: Having had an unsuccessful discussion or negotiation with Addleshaws, your lordship expressed yourself in strong – intemperate, almost -- anguish.”

“MR JUSTICE PETER SMITH: Nonsense. I don't know what part of the country you come from, Mr Crampin, but it's about time you grew up. If you think that's intemperate, then you are on another planet from me. If you thought it was intemperate, then you should have seen the correspondence which didn't trouble Mr Twigden.”

“MR CRAMPIN: I'm endeavouring to make a submission, not to engage with your Lordship in badinage of that kind. The question that a fair-minded person –”

“MR JUSTICE PETER SMITH: I'm challenging you, Mr Crampin, on your analysis, when you suggest that my correspondence was intemperate. I don't accept that.”

“MR CRAMPIN: Well, it's a submission, my Lord –”

“MR JUSTICE PETER SMITH: Well, I have rejected it. I've just told you.”

“MR CRAMPIN: Your Lordship will no doubt make it part of your judgment in due course. It's a submission I'm making to your Lordship that a fair-minded, reasonable onlooker, reading that correspondence, would come to the view that your Lordship bore a degree of animosity and hostility, even, towards Addleshaws as a result of the way that you thought you had been treated by them. That is what the e-mails disclose.”

“MR JUSTICE PETER SMITH: I don't agree the e-mails disclose that at all. The e-mails simply disclose that, and Mr Twigden has confirmed it today, that the reasons they gave were not the same reasons when they introduced me, and that I was therefore unimpressed by their change of attitude, which bore no relation to our discussions. But I'm sorry, Mr Crampin, life goes on, I'm afraid. I accept that. I am somewhat surprised that your solicitors are unable to accept that, despite the fact that they were willing to take me into the firm, despite the fact that I had accused a partner on the management firm of negligence, in correspondence which went far beyond that. It was a point which was so trivial, in Mr Twigden's mind, not only did he forget it when he prepared his confidential statement, but he also forgot that he said he would ensure that he would put no objection if that person objected.”

“MR CRAMPIN: Well, this is one of the more unusual exchanges that I've taken place –”

“MR JUSTICE PETER SMITH: This whole procedure is unusual, but we can't avoid that, because effectively I am being asked to recuse myself, and I'm the person who can deal with it.”

“MR CRAMPIN: Your Lordship is in the process of, while listening to my submissions, giving evidence.”

“MR JUSTICE PETER SMITH: I'm not giving evidence; I'm reminding you of what Mr Twigden said. I'm not going to decide this case on anything other than the answers Mr Twigden gave, and Mr Twigden confirmed that I did indeed raise those matters, and that they were not sufficient to lead him to believe I couldn't join the firm and that, if anybody objected, he would ensure they would be overruled. That is what his evidence was. Now given that, and given the seriousness of those matters, it is extraordinary to believe, is it not, that Addleshaws are actually fearful on the basis of these e-mails?”

...

“MR CRAMPIN: I don't think your Lordship is actually going to pay attention to anything further I say on this subject. Your conduct of the matter in the court today is remarkable. My submission to your Lordship …”

“MR JUSTICE PETER SMITH: I'm not going to comment on that, Mr Crampin. It does not dignify a comment”

“MR CRAMPIN: I'm making the submission that I am.”

“MR JUSTICE PETER SMITH: If you're going to say that, you'd better say it with specificity, or you'd better withdraw it, or there might be professional consequences.”

“MR CRAMPIN: Your Lordship can take whatever course you'd like to take.”

“MR JUSTICE PETER SMITH: No, if are going to say my conduct in court is quite remarkable, you have to say why. In which way do you think my conduct has been remarkable?”

“MR CRAMPIN: It is a remarkable proposition that a judge should cross-examine a witness in the basis of what is in the judge's head, which no-one else has seen.”

“MR JUSTICE PETER SMITH: Forgive me, Mr Crampin, that's because of the nature of the application because it appertains to particular facts. I have already said to you that I will decide this issue not on things that were in my head, but solely on the evidence that Mr Twigden has given, and he accepted all of my points. So it's his evidence which decides it, and nothing else. Do you have any other, better criticisms of my conduct?”

“MR CRAMPIN: My Lord, I have made the submissions I wish to make.”

“MR JUSTICE PETER SMITH: I'm sorry, Mr Crampin, I'm not going to allow you to pass over a gratuitous comment saying my conduct is remarkable, any more than anybody else would, without requiring you to be specific.”

“MR CRAMPIN: Well, I've indicated why your comment is --”

“MR JUSTICE PETER SMITH: Well, that's the one, is it?”

“MR CRAMPIN: Hmm?”

“MR JUSTICE PETER SMITH: That's the one thing? Because that would have made the application inevitable, because it would mean that the defendants, who have no knowledge of this, can't say anything, and I can't say anything, and therefore you ensure an absolute certainty to your application.”

“MR CRAMPIN: No, my lord. The question is, viewing those e-mails, whether, as I say, a fair-minded observer would conclude that --”

“MR JUSTICE PETER SMITH: You've already said that.”

“MR CRAMPIN: Yes, I have.”

“MR JUSTICE PETER SMITH: Well, you don't get better by repeating your submissions. I have that, and I'm aware of the authorities. Do you have anything more to say?”

“MR CRAMPIN: No, my Lord.”

“MR JUSTICE PETER SMITH: Thank you.”