Dear Stephen and John

Thank you both for your interesting comments on the Court of Appeal's
resolution of the apparent bias point in this case. In saying that I
thought the Court's approach was to be commended, I was focusing on
their comments regarding the learned trial judge's conduct, both in
correspondence with the joint head of Blackstone Chambers and indeed
in what the Court described as the BA Baggage Affair. I think it was
very important that the learned judge's behavior was criticized by the
Court of Appeal in appropriately strong terms and was satisfied with
that aspect of the decision.

I agree with Stephen that, had the Court of Appeal not (entirely
convincingly in my opinion) identified serious errors in the judge's
approach quite separate to the apparent bias point, it would have been
a close question whether the judgment of the learned judge should be
set aside for apparent bias.

However, I think the Court of Appeal was and would have been right to
refuse to set aside this judgment for apparent bias, on the very
narrow ground that the case had effectively been decided before the
article to which the learned judge took such objection was even
published (on 3 September 2015), let alone his conversation with the
joint head of Blackstone Chambers (in mid November 2015) or his letter
of complaint (sent on 1 December 2015).

The circumstances in which the judge's judgment was prepared and the
dates on which the various steps in its preparation took place (the
"Chronology") are set out at paragraphs 57-59 of the judgment, which
read as follows:

"57. It is necessary to have in mind some key aspects of the
chronology. The starting point is that on 23rd July, after the
conclusion of the evidence, the judge asked the parties whether they
wished him to give an indication of his provisional views. In response
to their request that he should do so, he said:


"on the evidence at the moment I am of the provisional view that there
was an agreement as the claimant alleges. However, the question of the
capacity of the agent I find very troubling at the moment, the
capacity of the agreement. I suspect, I have not looked into it, there
is some law about whether or not an agent, [where there] is an
undisclosed principal, can assume personal liability under the
contract."

58. The parties then made their closing submissions and the judge
reserved judgment. He dictated his judgment during the last week of
July and first week of August. On 5th August, a written note was
submitted on behalf of the Prince commenting on the authorities relied
on by Mrs. Harb in relation to the agency issue. The judge says that
he dictated a short addendum to the relevant section of the draft
judgment relating to the agency issue, but that the draft was not
otherwise materially altered.

59. He handed the tapes to his clerk for typing later in August. On
21st August, there was a further hearing before the judge to purge the
Prince's contempt for failing to attend the hearing. The judge said
that he had hoped to release his judgment in draft form that day. He
was on leave between 2nd and 16th September. As we have already
stated, the Article was published on 3rd September. The judge's clerk
started typing the judgment on 6th October. She believes that she
completed transcribing the tapes on 14th October. She says that she
printed off a hard copy of the judgment for the judge to check and
approve and that she made the amendments required by him on 19th
October. The draft judgment was circulated to the parties on 21st
October. It was handed down on 3rd November."

At the earliest, the circumstances which gave rise to the judge's
apparent bias arose when he read the article (or became aware of its
contents), some time on or after 3 September 2015. The only amendments
which the judge made after that time were to the draft judgment
prepared by his clerk on 14 October 2015. Critically to my mind, the
judge had expressed a clear (though provisional) view on the central
point in the case in open Court on 23 July. I think that his
expression of a view on 23 July was central to the Court of Appeal's
judgment also.

So, I think the Court of Appeal is right when it concludes at
paragraphs 75 and 76 that:

"75. ... The assessment of whether an informed and fair-minded
observer, having considered the facts, would conclude that there was a
real possibility of bias depends on an examination of all the relevant
facts. It is fact sensitive. In our view, the facts in the present
case show that the possibility that Peter Smith J was actuated by bias
against the Prince is unrealistic. We accept the submission of Mr.
Hollander that the chronology of events is very powerful. The judge
indicated in open court immediately after the conclusion of the
evidence that he was of the provisional view that "there was an
agreement as the claimant alleges". This was despite his (at times)
aggressive questioning of Mrs. Harb. The only caveat he entered was in
relation to the agency issue. But his concern in relation to that
issue seems to have had nothing to do with the credibility of the
witnesses. Rather, at that stage it concerned a question of law as to
whether an agent may be liable where there is an undisclosed
principal. That may be an elementary question (as Lord Grabiner
suggested), but that is neither here nor there.

76. The critical point is that the question whether a binding
agreement was concluded at the meeting on 20 June 2003 was at the
heart of the case. It turned to a large extent on the credibility of
the oral evidence of Mrs. Harb and Mrs. Mustafa-Hasan and the witness
statement of the Prince. We are not persuaded that there is a real
possibility that the judge changed his mind about their evidence after
reading the Article. It is true that the judge could have amended
his draft judgment after reading the Article so as to make findings
favourable to Mrs. Harb which were not contained in the original
draft. But the judge said that the only amendments that he made were
to deal with the note on the agency authorities and otherwise the
amendments were not material. We see no reason to disbelieve this and
we did not understand Lord Grabiner to submit that we should do so.
More fundamentally, we think it fanciful to suppose that the judge
made major changes to his assessment of the evidence simply as a
reaction to the Article or that his decision on the agency issue owed
anything
to a bias against the Prince. There is no evidence to suggest that he
did so. In our view, the informed and fair-minded observer would not
conclude that there was a real possibility that the judge behaved in
this way."

Apparent Bias, General Comments

Two points concerning the law on apparent bias, as stated by the Court
of Appeal, do cause me concern because they run contrary to what I
understand the aim of the law on apparent bias to be, namely to ensure
that reasonable members of the public are confident that justice is
being administered impartially by judges who are not biased.(In
fairness, I should stress that both are points settled by previous
cases, sited by the Court in its general discussion of the issue and
that I think neither was critical to the decision reached.)

First, the notion that: "72. ... the informed and fair-minded observer
is to be treated as knowing all the relevant circumstances and it is
for the court to make an assessment
of these: see Competition Commission v BAA Ltd and Ryanair Ltd
[2010] EWCA Civ 1097
per Maurice Kay LJ at paras 11 to 13 and the authorities cited there.
It is common ground before us that the relevant circumstances in this
case include
all the facts set out at paras 57 to 59 above, although some of these
were not in the public domain. It was held in Virdi v Law Society
[2010] EWCA Civ 100
that the hypothetical fair-minded observer is to be treated as if in
possession of all the relevant facts and not only those that are
publicly available.
Stanley Burnton LJ gave a number of reasons for this conclusion at
paras 43 to 48 of his judgment. This reasoning is binding on this
court. In any event,
we are satisfied that it is correct."

It seems wrong in principle to me to hold that the informed and fair
minded observer should be treated as in possession of facts that are
not publicly available, facts which an ordinary reasonable person who
took an interest in a case and might be concerned by a judge's
approach to a case could not know. That is because ordinary
reasonable people looking in from the outside would be left
unconvinced that there was no cause for concern. The law on apparent
bias has an important profalactic function, it is designed in the
first instance to ensure that judges and other decision makers do not
determine matters in which they might be seen not to be impartial. It
is reasonable to expect an ordinary person who is considering whether
or not a judge might be biased to look into the matter and consider
all facts available to him or her. By definition they cannot be
expected to take what they do not and cannot know into account in
making that assessment. Public confidence in the impartiality of the
administration of justice could be undermined by reliance on
information which was not publicly available to excuse what would
otherwise appear to be apparent bias. It is no answer to that to say
that a judgment which does excuse apparent bias by relying on private
information will refer to that information and thereby set the record
straight because this is to ignore both the aim of the law here, to
assure the ordinary reasonable member of the public that justice is
administered impartially and its profalactic function.

So, if the case had turned only on the Chronology, I would have been
far from comfortable with the Court's conclusion. The learned judge's
expression of a clear (if provisional) view in open Court was
critical.

Second, echoing similar centiments in previous cases, the Court said:


"71. ... From time to time, the patience
of judges can be sorely tested by the behaviour of advocates.
Sometimes, a judge will overreact and unwisely make an intemperate
comment. But judges are
expected to be true to their judicial oaths and not allow their
feelings about an advocate to affect their determination of the case
they are hearing.
The informed and fair-minded observer is to be assumed to know this."

With respect, reliance on the judicial oath (which is quite common in
cases of this type) to suggest that conduct does not give rise to
apparent bias seems at best to beg the question. To my mind, either a
judge's conduct gives rise to apparent bias or it does not. (as a
single intemperate remark to counsel in the heat of argument may well
not.) If anything, one would expect Courts to treat the judicial oath
as requiring that judges, like caeser's wife be above suspician,
rather than using the judicial oath as a means of excusing conduct
that it appears to be accepted would otherwise give rise to apparent
bias. (If the conduct would not give rise to apparent bias, absent
reliance on the fair minded and informed observer's supposed
understanding of the supposed consequences of the judicial oath, then
the oath cannot be relevant.)

More generally, I am far from convinced that an ordinary person
looking at conduct by a judge which caused them concern that the judge
might be biased would reassure themselves that because the judge had
taken an oath, everything was allright.

Those are my thoughts anyway, on which I would welcome any comments.

Kind regards

Ger