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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Sandhu & Anor v The Charity Commission & Ors [2017] EWHC B14 (Ch) (20 April 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/B14.html Cite as: [2017] EWHC B14 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Birmingham Civil Justice Centre 33 Bull Street Birmingham
		20 April 2017

JUDGE BARKER QC:

1. This is an application by the now Part 20 defendants (who were formerly the claimants by the original claim) in what have become charity proceedings. The order sought on this application is that I should recuse myself from judging the trial of the action, I having conducted and ruled upon hitherto applications for discontinuance of the action and consequential matters, including costs and a payment on account of costs.
2. The application is made by the two effective defendants to what is now a Part 20 claim, Mr Tarsem Singh Sandhu and Mr Manjit Singh Boparai. The evidence in support of the application is expressed with considerable reticence, but nevertheless puts forward concern that Mr Sandhu and Mr Boparai do not think that they will get a fair trial before me, and they believe that I have decided that they are not to be believed.
3. The basis for that belief is expressed in the evidence at paragraph 5 of the witness statement of Mr Boparai, which is in the following terms:

"The judge has already said that my explanations over the banking order are stretching credulity to and beyond normal tolerances. I know that the judge did clarify and to some extent qualify his impression of me in his ruling on costs on 15 February 2017 by saying that this was only an impression of me and that his impression may be different if the same evidence was weighed up by him after a trial, when disclosure of witness statements and oral evidence had taken place. My problem is that the judge will never hear this further evidence. I fear (and I may be wrong about this but this is how I feel) that the very bad image formed about me will stick with the judge whenever I speak and whatever I say at the trial. That must be inevitable since he will never hear the full story of the banking saga".

This is the sole circumstance relied upon by Mr Sahota, who appears for Mr Sandhu and Mr Boparai.

4. The "banking saga" referred to concerned non-compliance with an agreed, as I found, order (which had been entered as a consent order following a hearing before Mr Justice Newey) as to the running of the bank account of the Gurdwara, the election of the management committee of which is the subject of these proceedings. The passage relied on in particular is my observation "stretching credulity to and beyond normal tolerances".
5. On the material before me at the time that I gave my judgment was the evidence as to two matters that I referred to in my judgment and other matters I did not refer to. The two I referred to were the payment of insurance premiums by several cheques, rather than one cheque per premium, in order to come below an agreed provision for prior agreement of payments; and secondly (and this was the key point), the banking in an undisclosed bank account of certain monies after the normal bank account had been reopened. The explanation that I was given in the course of the hearing was that that banking was entirely the responsibility of the security company responsible for taking the money to the bank. The reason that I expressed myself in the way that I did was because, after enquiries as to the banking process during the course of the hearing, I proceeded on the basis, and was not informed to the contrary, that the paying-in slip had been prepared by the treasurer or the assistant treasurer at the Gurdwara, and that the role of the security company was simply to convey the money to the bank. It transpired (and a letter was obtained after the judgment was handed down and before the hearing as to costs) that the security company stated that it was responsible for completion of the paying-in slip and it had completed the wrong paying-in slip, which of course, if that turned out to be true, would put a completely different slant on the view that I expressed. So that is the background to this application.
6. Mr Sahota, who makes this application on behalf of the defendants, has made clear that the defendants take no pleasure in making this application, that they do it with some reticence, and that they do so without any personal feeling towards me. Mr Sahota's submission is that the defendants themselves have come to the view in the context of the judgment, and in particular the passage in the judgment that I have referred to and they rely upon, that I am apparently likely to be biased against them and therefore that I am not suitable to be the trial judge.
7. Mr Sahota recognises that the essential test is that stated in Porter v Magill, [2002] 2AC 257 at [102]-[103], based on the formulation of the test for apparent bias stated by Lord Phillips MR in In re Medicaments [2001] 1 WLR 700 at p726-727 case, namely that 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 that the tribunal was biased.
8. Mr Sahota submits that it is a fundamental principle of justice that the tribunal deciding a case should be impartial, and that that is both a principle of common law and is enshrined in statute under our Human Rights Act, drawing on Article 6 of the European Convention on Human Rights, guaranteeing the right to a fair trial. Mr Sahota submits that the subjective views of the defendants would also be shared objectively by a fair-minded informed observer who, looking at the situation, may come to the same conclusion. Mr Sahota stresses that the test is one of real possibility, rather than one of probability, so "who may come to the conclusion" suffices. Thus Mr Sahota submits that such an observer looking at the same facts would or might think that the defendants would not get a fair hearing because the judge (me) had made up his mind and, were I to be the trial judge, my thinking would be adversely affected. That is a view, on Mr Sahota's submission, that an informed and fair-minded independent observer could reasonably form.
9. Mr Khangure QC, who appears for the Part 20 claimants, has drawn my attention to a very recent authority in the Queen's Bench decision in the case of Al Zawawi v Newson-Smith [2016] EWHC 2796 (QB), a decision of Mr Justice Morris, and the relevant paragraphs are [27]-[28]. At [27], Morris J refers to the various authorities to which he had been referred, which include Porter v Magill and the well-known case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, and to the other authorities to which he was referred by counsel during argument. From those authorities Morris J extracted eight principles, which are:

"1. The fundamental test is that laid down in Porter v Magill, namely whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the tribunal was biased.

2. There must be substantial evidence of actual or imputed bias before a recusal application will succeed.

3. Where there is real ground for doubt, that doubt should be resolved in favour of recusal.

4. Bias does not arise only where the judge might have a personal interest or connection with the case, but extends to any real possibility that a judge would approach the case with a closed mind or indeed with anything other than an objective view. A real possibility, in other words, that he might in some way have prejudged the case." (That is a quote from the case of Otkritie International Investment Management v Urumov [2014] EWCA Civ 1315).

"5. That an example of bias is where, on any question at issue in the proceedings before him, the judge has expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind." (That is drawn from Locabail at [25].).

"6. The use of intemperate language, questioning the good faith of the party's application, or conduct which amounts to entering into the arena, can all result in loss of or perceived loss of the necessary objectivity and impartiality.

7. The opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The real possibility test is an objective one.

8. The mere fact that a judge, earlier in the same case or in a previous case, has commented adversely on a party or a witness, or found the evidence of a party or a witness to be unreliable, will not, without more, found a sustainable objection." (Again, that is a quote from Locabail at [25]).

10. Mr Khangure draws particular attention to points 2, 4, 5, 7 and 8.
11. In my judgment, this is not a case from which I should recuse myself at trial not least because, as Mr Khangure has pointed out, when the circumstances relied on weighed up there must be an underlying basis which amounts to substantial evidence of imputed bias (this is a case of apparent bias). Further, drawing on Locabail, the mere fact that I have been critical of some evidence of the Part 20 defendants will not, without more, found a sustainable objection.
12. Properly analysed, this application falls significantly short of the threshold for recusal, in particular by reference to those two points, so I dismiss the application.
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