As he notes, the Court of Appeal sets aside the trial decision and orders a new trial before a different judge, and it does so on grounds related to various shortcomings in the trial judge's reasons in favour of Ms Harb's position. The court finds the judge did not deal properly or sufficiently with various aspects of the evidence (see paras 38-40).
It then deals with the issue of judicial bias against one side flowing from bias against the lawyer for that side. It ends up concluding that the bias allegations are not made out. I find the reasoning on this issue less than convincing. It leaves me wondering whether, had the court not already ordered a new trial because of the other grounds of appeal, it would equally have dismissed the bias allegations and thereby allowed the trial decision to stand. That seems unlikely to me.
Having said, of the trial judge's conduct,
"the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being "outrageous" as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so." (para 68)
it seems hard to accept a decision rendered in such circumstances could have been allowed to stand. Despite the court's parsing of the specific facts involved in rendering the trial decision (paras 73-77) I think there is enough of a foundation for a reasonable apprehension of bias. Of course it is possible, and maybe even likely, that the judge was not actually biased. But in these pretty outrageous circumstances I would not think that's good enough.
Stephen
On 16/06/2016 10:19 AM, Gerard Sadlier
wrote:
Dear all The EWCA today published its judgment in Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 http://www.bailii.org/ew/cases/EWCA/Civ/2016/556.html. The Court of Appeal allowed the Respondant's appeal on a number of grounds, relating to Peter Smyth J's approach to the evidence (particularly the refusal of the respondant Prince to make himself available for cross examination) and approach to the legal issues in the case. The apparent bias point which I noted on the list before relating to the learned judge's correspondence with Blackstone Chambers did not need to be resolved to decide the case. Nevertheless, the Court of Appeal dealt with that ground of appeal from paragraph 49 onward, in terms which are to be commended in my view. The Court would not have allowed the appeal on this point because the judge's judgment had been largely finalized before the matters said to give rise to apparent bias occurred. However, the Court was extremely critical of the learned judge's conduct. For those interested, the relevant section of the judgment should be read in full. Kind regards Ger
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Professor Stephen G.A. Pitel
Faculty of Law, Western University
(519) 661-2111 ext 88433
Treasurer and Corporate Secretary, Canadian Association for Legal Ethics
Professor Stephen G.A. Pitel
Faculty of Law, Western University
(519) 661-2111 ext 88433
Treasurer and Corporate Secretary, Canadian Association for Legal Ethics