Yours truly,

John Kleefeld

Associate Professor, College of Law

University of Saskatchewan

15 Campus Drive

Saskatoon SK  S7N 5A6

tel:          (+1) 306.966.1039

email:    john.kleefeld@usask.ca

skype:    johnkleefeld

twitter: @johnkleefeld

web:       http://law.usask.ca/find-people/faculty/kleefeld-john.php

Read my most recent article, co-authored with former student Kate Rattray, on editing Wikipedia for law school credit: http://ssrn.com/abstract=2729241. Also just published—the fourth edition of Dispute Resolution: Readings and Case Studies: http://www.emond.ca/dispute-resolution-readings-and-case-studies-4th-edition-p.html.

I am less content with the Court of Appeal's decision on the bias issue than is Ger.

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

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