The claimant brought a claim against the defendants seeking damages for a personal injury suffered at work. The deputy district judge refused to grant the claimant relief from sanctions for failing to comply with an order requiring disclosure of his medical records and assessed the damages at nil. A different judge refused to grant the claimant permission to appeal on paper but the claimant was granted permission to appeal at an oral hearing by a third judge. The substantive hearing of the appeal took place before the same judge who had refused the claimant permission to appeal on paper. The judge refused to recuse herself, concluding that the fair-minded and informed observer would not take the view that her previous involvement in the appeal might create a real possibility of bias, and went on to dismiss the appeal as having no real prospect of success. The claimant appealed on the ground that since the judge had earlier refused him permission to appeal, the hearing by her of the substantive appeal gave rise to an appearance of bias which justified the setting aside of her order and a direction for the appeal to be re-heard in front of a different judge.
On the appeal—
Held, appeal dismissed. The involvement of a judge at the permission stage involving a consideration of the papers did not disqualify that judge from hearing the substantive appeal or an oral renewal of the permission application unless the judge had expressed his views in such a way as to indicate to any fair-minded lay observer that he had reached a concluded opinion and was unlikely to be open to further argument. There was nothing inherent in the process that was inimical to the possibility of a fair oral hearing by the judge who had made the paper decision. The test for granting permission imposed by CPR Pt 52 did of course mean that the judge who refused permission would have concluded that the grounds of appeal were not sufficient even to qualify as seriously arguable. For the purposes of granting permission, it was not necessary to consider that the appeal was likely to succeed, but that was not enough in itself to disqualify the judge from hearing the substantive appeal. With the benefit of oral argument, the judge would be open to being persuaded that his or her initial view was wrong. This was an everyday feature of litigation both at first instance and in the Court of Appeal. In the present case, the judge had done no more than apply the test she had been required to apply and there was nothing in the terms of her decision to indicate that she would not be open to further argument and persuasion were the matter to be restored to her for an oral hearing or (as it happened) were she assigned to hear the full appeal. In these circumstances there was no basis for the informed observer to have apprehended a real danger of bias (paras 35–37, 38, 39).
Al Mustakim and Jayed Sarker (instructed by Dotcom Solicitors Ltd) for the claimant.
Christian Du Cann (instructed by DAC Beachcroft Claims Ltd) for the defendants.