England and Wales Court of Appeal (Civil Division) Decisions

“1. The parties litigated a boundary dispute. A trial took place in 1999. At that trial, the Appellants were not represented but the Respondents had both solicitors and counsel. The trial judge informed the parties that he had been a client of the Respondents’ solicitors (referred to as “MAB”), but that it had been “many years” since he had last instructed them, and no one objected to him continuing to hear the trial. In November 1999, judgment was given against the Appellants. An appeal was made to the Court of Appeal. One ground of appeal was that there was an appearance of bias because of the judge’s relationship with the other parties’ solicitors, MAB. Subsequent to the permission being granted in March 2000, it was disclosed to the Appellants that the judge and his wife had in fact used the services of MAB the very night before judgment was given against the Appellants to amend their wills. Before the appeal, the judge provided further information as to his involvement with MAB.

2. The appeal failed in January 2001. The Appellants have subsequently learnt that the judge did not pay for the services provided by MAB. He therefore received a financial benefit from MAB in whose favour he gave judgment. The fact was never disclosed by the judge, despite his having the opportunity to do so. The earlier appeal was dismissed in ignorance of this fact …”

“In none of the cases brought to our notice has an action to set aside a judgment on the ground of fresh evidence succeeded. Indeed there is nothing to show that in the last 100 years any such action has even been brought though in Falcke’s case, 57 L.T. 39 in 1887 there was an unsuccessful attempt to bring one. In so far as any of the dicta tend to show that an action will lie they are obiter. The reason which Sir George Jessel M.R. gave in In re St. Nazaire Co, 12 Ch.D. 88 for the view that the jurisdiction to order a rehearing was vested by the Judicature Act in the Court of Appeal and not in the High Court is of equal weight in relation to fresh evidence as to the type of case with which he was dealing. Even if, technically, the High Court was at first clothed with this jurisdiction we are of opinion that this cause of action has long since lapsed because applications for rehearing on the ground of fresh evidence have for generations been made only to the Court of Appeal.”

“When oral judgment has been given, either in a court of first instance or on appeal, the successful party ought save in most exceptional circumstances to be able to assume that the judgment is a valid and effective one. The cases to which we were referred in which judgments in civil courts have been varied after delivery (apart from the correction of slips) were all cases in which some most unusual element was present.” (emphasis added)

Later Russell LJ added (at p24E-F);

“It is clearly not permissible for a party to ask for a further hearing merely because he has thought of a possible ground of appeal that he originally overlooked. The discovery of fresh evidence has never been suggested as a ground for reopening the argument before the Court of Appeal. If fresh evidence comes to light, of such a character as to call for further consideration of the issues, the right way to deal with the situation is by applying for leave to appeal to the House of Lords… ”

“ (1) The Court of Appeal shall be a superior court of record.

(2) Subject to the provisions of this Act, there shall be exercisable by the Court of Appeal-

(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and

(b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act.”

“Appeals: general provisions

(1) Subject to the provisions of this section and the following provisions of this Part of this Act and to any order made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999, if any party to any proceedings in a county court is dissatisfied with the determination of the judge or jury, he may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by Civil Procedure Rules.”

“81. Powers of Court of Appeal on appeal from county court

(1) On the hearing of an appeal, the Court of Appeal may draw any inference of fact and either –

(a) order a new trial on such terms as the court thinks just; or

(b) order judgment to be entered for any party; or

(c) make a final or other order on such terms as the court thinks proper to ensure the determination on the merits of the real question in controversy between the parties.”

“(3) For all purposes of or incidental to –

(a) the hearing and determination of any appeal to the civil division of the Court of Appeal; and

(b) the amendment, execution and enforcement of any judgment or order made on such an appeal,

the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.”

“If there were no other remedy I should be disposed to think that the relief now asked ought to be granted, for I should be slow to believe that there were no means whatever of rectifying such a miscarriage if it took place; but I am satisfied that there is another remedy.”

i) that there is a jurisdiction conferred by the County Court Rules as transposed to the Court of Appeal;

ii) that a jurisdiction exists by analogy with the Court of Appeal’s apparent jurisdiction in the case of fraud, as suggested in Wood v Gahlings (unreported, 4 November 1996) (transcript CAT 96/1525); and

iii) that by analogy with cases where the implementation of an order needs supervision, the Court of Appeal retains jurisdiction to revisit an appeal judgment in special cases.

Jurisdiction based upon the County Courts Rules

Grounds of jurisdiction 2 and 3; by analogy with Wood v Gahlings and retained jurisdiction.

“There is no doubt that there is a serious question mark, to say the least, as to whether or not the Court of Appeal has any jurisdiction to revisit its own final decisions. These are, of course, civil proceedings like any other civil proceedings. But, unlike other civil litigation, in all family cases there is a continuing situation.… Specifically, in Hague Convention cases, the court does not make a decision, yes or no, and then wash its hands of the result. This court inevitably has a continuing jurisdiction for the purpose of implementation; as it has in other forms of civil litigation, but particularly in family cases.”

“It is possible, though I would not like to be too encouraging about it, that this court, as the final court on applications for leave, may, in the most exceptional circumstances, have the power to revisit its own decisions. Miss Golden did pray in aid a decision of this court of which I was a member in Re: C (A Hague Convention Case), unreported, 1st November 1999. But the point of that case was that we said that you could revisit an order for the purpose of implementing it, and there was no suggestion in the judgments in that court that it would be for the purpose of setting aside an earlier order and substituting another. But I can see the possibility of a residual power in the court with the final decision-making process, which may extend to the Court of Appeal as the final court (as it is, since the decision in Lane v Esdaile) on applications for permission to appeal, that if it can be demonstrated that there is some factor outside the decision in the case itself that stands out, then it may be necessary to set that order aside. It would have, in my view, to be a factor that flawed the decision, and a factor which was outside the ambit of the decision itself. For instance, that the court had read the wrong papers in order to come to a decision or the fact that the court might not be competent to hear the case.”

“In my judgment the circumstances of this case come nowhere near to the very limited circumstances in which the refusal of permission to appeal by the Full Court, pronounced in open court, can subsequently be challenged (whether by way of further appeal, application to set aside the decision or in any other way). Without in any way attempting a comprehensive statement of what those circumstances might be, it is possible to note three categories which are exceptional.

The first (which I mention only for completeness) is the familiar power under the slip rule to correct an order before it has been perfected; although in the circumstances of refusal of permission to appeal that is unlikely to be in point.

Another case mentioned by my Lady, the President, is the possibility (which was noted in the Hague Convention case of Re: C, decided by this court on 1st November 1999) that the working out of an order made by the Full Court might be varied under an express or implied liberty to apply for the purposes of implementing the previous order.

That leaves the third, and for present purposes most relevant, category, that is a very limited residual class of cases in which in quite extraordinary circumstances a decision might be revisited. That class was tentatively described by Lord Donaldson MR in Daisystar v Town and Country Building Society [1992] 2 All ER 321, 324 when, after referring to a passage in the judgment of Mustill LJ in Aden Refinery v Ugland Management [1987] QB 650, at page 666, Lord Donaldson said:

“For my part, I would affirm that comment by Mustill LJ. [That was a comment in relation to judicial impropriety.] While I cannot and do not contemplate bias, whimsy or personal interest in the judges of this court, mischance is always a remote possibility: if, for instance, a Lord Justice had pre-read two cases and, owing to mischance and perhaps the absence of counsel or gross incompetence by counsel, in the course of the argument it was never borne in on him that the case upon which counsel was addressing him was not in fact the case to which he was applying his mind. I can see that, in those circumstances, it could be argued that there had not been a decision and, if there was no decision, quite plainly s.54(6) does not apply.”

(The reference was to section 54(6) of the Supreme Court Act 1981.)”

“[I]t must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of this House in this regard and therefore its inherent jurisdiction remains unfettered. In Broome v Cassell & Co Ltd (No.2) [1972] AC 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.

However, it should be made clear that the House will not reopen any appeal save in circumstances, where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.”

“The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff’s choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.

The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an “inherent power” the exercise of which is within the “inherent jurisdiction” of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.”

“There can be no doubt that a court which is endowed with particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”

THE BIAS ISSUE

“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 12th 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.”

“32. In the present case the material facts included the disclosure by the judge that the solicitors instructed by the claimants held his will. Whether or not he needed to disclose that fact in the circumstances of this case is not a matter which I find it necessary to decide. The fact is that he did disclose that fact and that that disclosure led no-one to object. What he did not disclose was that those solicitors had current instructions to amend that will or, perhaps more accurately, to prepare a codicil; nor did he disclose that he had made an appointment to attend on those solicitors at their offices for the purposes of executing the codicil. Whether or not, having disclosed that the solicitors held his will, he would have been wise to disclose those additional matters also, is, again, something which I do not think it necessary to decide. The relevant question is not whether the judge was wise to act as he did; nor whether other judges might have acted differently. The relevant question is whether, having disclosed that the solicitors held the will, his failure to disclose also that the solicitors were currently instructed in relation to it gives rise to a fear in a fair-minded and informed observer of a real danger that the judge's judgment would be influenced by that current relationship.

33. In my view, no fair-minded observer would reach the conclusion that a judge would so far forget or disregard the obligations imposed by his judicial oath as to allow himself, consciously or unconsciously, to be influenced by the fact that one of the parties before him was represented by solicitors with whom he was himself dealing on a wholly unrelated matter. It is a matter of everyday experience that judges are acquainted, in one capacity or another, with those who appear before them as solicitors or advocates. That is a matter of which an informed observer would be well aware. The informed observer would be well aware, also, that judges, solicitors and advocates can be expected to recognise that it is a matter of paramount importance that the public should retain confidence in the administration of justice; and to recognise that they are required to conduct themselves accordingly. But judges, solicitors and advocates are entitled to expect from a fair- minded and informed observer a corresponding recognition that they will endeavour to be true to their judicial oath and to the standards set by their respective professional codes. It is not to be assumed, without cogent evidence to the contrary, that a judge's acquaintanceship, whether social or professional, with those conducting litigation before him in a professional capacity will lead him to reach a decision in that litigation that he would not otherwise reach on the evidence and the arguments.

34. The judge kept the appointment which he had made. He executed his will at the solicitors' offices on the evening of 11th November 1999, after the completion of argument in the case and before giving judgment on the following morning. The mere fact that he attended to execute his will in accordance with the appointment which he had made adds nothing, in my view, to the matters to which I have already referred. It was an incident of the current professional relationship between the judge and his solicitors.

35. The more relevant question is whether his attendance at the solicitors' offices would lead a fair-minded and informed observer to infer that he might use the opportunity to discuss the litigation which he had been hearing that day with someone in those offices whose views would impact upon his mind; or, to revert to the test which is to be applied, that the fair-minded and informed observer would infer that there was a real danger that that might occur.

36. The chance of a judge meeting out of court a solicitor or advocate who is currently appearing before him in court is a chance which has to be accepted unless judges are to lead lives of cloistered isolation. The danger lies not in the chance meeting - or even in a meeting planned for some purpose unrelated to the litigation - but in the discussion of the litigation in the course of that meeting. The fair-minded and informed observer would, in my view, credit both judge and solicitor (or advocate) with a recognition that discussion of current litigation would be wholly improper; and, indeed, would be likely to be embarrassing to either or both of them. He would not infer, without cogent evidence to the contrary, that the judge, solicitor or advocate would forget the behavioural norms by reference to which their daily lives are conducted.

37. It may well be that, had this matter been handled differently, the suspicion that the appellants now undoubtedly hold of the judge's partiality would never have arisen. But I repeat that the test is not whether the appellants think that the judge may have been biased; but whether a fair- minded and informed observer would conclude that there was a real danger of bias. I have no doubt that a fair-minded and informed observer, taking account of all the material facts, would not reach that conclusion.”