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