Law Report: Bias allegation not made out: Arab Monetary Fund v Hashim and others - Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Stuart-Smith and Lord Justice Beldam), 28 April 1993

Counsel should not make an application for the removal of a judge on the ground of actual or apparent bias simply on the instructions of his client but should conscientiously satisfy himself that there was material on which the application could properly be made.

The Court of Appeal refused the first and second defendants, Dr and Mrs Hashim, leave to appeal against Mr Justice Chadwick's refusal to discharge himself from the trial of the action.

In 1988, the fund issued a writ against, among others, Dr and Mrs Hashim alleging that they had misappropriated the fund's monies. Mr Justice Hoffmann was assigned to deal with the interlocutory applications. In 1990, an application by the first defendant that Mr Justice Hoffmann should be discharged from the case was dismissed by Sir Nicolas Browne-Wilkinson, the Vice-Chancellor. A subsequent complaint against Mr Justice Hoffmann was not pursued.

On Mr Justice Hoffmann's appointment to the Court of Appeal, Mr Justice Chadwick was asked to handle the interlocutory stages and trial. Seven days after the fund opened its case in January 1993, Dr Hashim drafted a letter to the Lord Chancellor seeking to remove Mr Justice Chadwick but, on legal advice, it was not sent. After about six weeks, Colin Ross-Munro QC, for the Hashims, asked the judge to discharge himself from further conduct of the hearing on the ground that the judge had made remarks in open court in an ex parte application in an unconnected case, Newman v Shiner, which suggested apparent bias. Mr Justice Chadwick, giving full reasons, refused to withdraw from the case.

Colin Ross-Munro QC and Hugo Page (Landau & Scanlan) for the Hashims; Peter Scott QC and Charles Flint (Freshfields) for the fund.

SIR THOMAS BINGHAM MR, giving the court's judgment, said the overriding principle was that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The test was: would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was possible? The hypothetical observer was not one who made his judgment after a brief visit to the court but one who was familiar with the detailed history of the proceedings and with the way cases were tried.

Just as an inference of apparent bias was not to be lightly drawn, so such a charge was not to be lightly made. That remained true even where, as here, any suggestion of actual bias was expressly disclaimed. Cases might unhappily arise in which evidence of bias or apparent bias was so clear that an application for the discharge or removal of a judge was justified.

But such an application was never justified simply by the instructions of the client. Counsel's duty to the court and to the wider interests of justice required that he should not lend himself to making such an application unless he was conscientiously satisfied there was material upon which he could properly do so.

It was accepted that no inference of apparent bias could be drawn from the fact that most, or all, interlocutory applications had been decided against Dr Hashim.

Practice varied from judge to judge but on the whole the English tradition sanctioned and even encouraged a measure of dislosure by the judge of his current thinking. It did not sanction the premature expression of factual conclusions, or anything which might prematurely indicate a closed mind. But an expression of scepticism was not suggestive of bias unless the judge conveyed an unwillingness to be persuaded of a factual proposition what ever the evidence might be.

Mr Justice Chadwick would have been wiser to have made no allusion at all to this case in Newman v Shiner. Total abstinence from comment on a current case in public or in private should be the rule. However, no reasonable and unpartisan observer could have supposed that the judge was expressing conclusions adverse to the Hashims. The reasonable and fair-minded and neutral observer would not suspect the judge of bias.

The application should never had been made. The court had no hesitation in refusing leave to appeal.

Ying Hui Tan, Barrister

Start your day with The Independent, sign up for daily news emails
Voices
voices
News
general electionThis quiz matches undecided voters with the best party for them
Arts and Entertainment
Keira Knightley and Matthew Macfadyen starred in the big screen adaptation of Austen's novel in 2005
tvStar says studios are forcing actors to get buff for period roles
News
Prince William and his wife Catherine, Duchess of Cambridge show their newly-born daughter, their second child, to the media outside the Lindo Wing at St Mary's Hospital in central London, on 2 May 2015.
news
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA celebration of British elections
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Ashdown Group: Trainee Consultant - Surrey/ South West London

£22000 per annum + pension,bonus,career progression: Ashdown Group: An establi...

Ashdown Group: Trainee Consultant - Surrey / South West London

£22000 per annum + pension,bonus,career progression: Ashdown Group: An establi...

Ashdown Group: Recruitment Consultant / Account Manager - Surrey / SW London

£40000 per annum + realistic targets: Ashdown Group: A thriving recruitment co...

Ashdown Group: Part-time Payroll Officer - Yorkshire - Professional Services

£25000 per annum: Ashdown Group: A successful professional services firm is lo...

Day In a Page

Fishing for votes with Nigel Farage: The Ukip leader shows how he can work an audience as he casts his line to the disaffected of Grimsby

Fishing is on Nigel Farage's mind

Ukip leader casts a line to the disaffected
Who is bombing whom in the Middle East? It's amazing they don't all hit each other

Who is bombing whom in the Middle East?

Robert Fisk untangles the countries and factions
China's influence on fashion: At the top of the game both creatively and commercially

China's influence on fashion

At the top of the game both creatively and commercially
Lord O’Donnell: Former cabinet secretary on the election and life away from the levers of power

The man known as GOD has a reputation for getting the job done

Lord O'Donnell's three principles of rule
Rainbow shades: It's all bright on the night

Rainbow shades

It's all bright on the night
'It was first time I had ever tasted chocolate. I kept a piece, and when Amsterdam was liberated, I gave it to the first Allied soldier I saw'

Bread from heaven

Dutch survivors thank RAF for World War II drop that saved millions
Britain will be 'run for the wealthy and powerful' if Tories retain power - Labour

How 'the Axe' helped Labour

UK will be 'run for the wealthy and powerful' if Tories retain power
Rare and exclusive video shows the horrific price paid by activists for challenging the rule of jihadist extremists in Syria

The price to be paid for challenging the rule of extremists

A revolution now 'consuming its own children'
Welcome to the world of Megagames

Welcome to the world of Megagames

300 players take part in Watch the Skies! board game in London
'Nymphomaniac' actress reveals what it was really like to star in one of the most explicit films ever

Charlotte Gainsbourg on 'Nymphomaniac'

Starring in one of the most explicit films ever
Robert Fisk in Abu Dhabi: The Emirates' out-of-sight migrant workers helping to build the dream projects of its rulers

Robert Fisk in Abu Dhabi

The Emirates' out-of-sight migrant workers helping to build the dream projects of its rulers
Vince Cable interview: Charging fees for employment tribunals was 'a very bad move'

Vince Cable exclusive interview

Charging fees for employment tribunals was 'a very bad move'
Iwan Rheon interview: Game of Thrones star returns to his Welsh roots to record debut album

Iwan Rheon is returning to his Welsh roots

Rheon is best known for his role as the Bastard of Bolton. It's gruelling playing a sadistic torturer, he tells Craig McLean, but it hasn't stopped him recording an album of Welsh psychedelia
Morne Hardenberg interview: Cameraman for BBC's upcoming show Shark on filming the ocean's most dangerous predator

It's time for my close-up

Meet the man who films great whites for a living
Increasing numbers of homeless people in America keep their mobile phones on the streets

Homeless people keep mobile phones

A homeless person with a smartphone is a common sight in the US. And that's creating a network where the 'hobo' community can share information - and fight stigma - like never before