Mr Justice Hildyard :
Nature of this Appeal
- By this Appeal M&P Enterprises (London) Limited (the "Appellant") seeks an order setting aside the order of HH Judge Baucher (the "Judge") dated 9 February 2017, as varied by the order of Morgan J dated 26 April 2017, on the basis that the Judge's conduct of the Trial was unfair and/or would have led a fair-minded and informed observer to conclude that there was a real possibility of bias on the Judge's part. If successful on appeal the Appellant seeks a new trial before a different judge, with a view to vindicating its alleged right to be granted new tenancies of four valuable buildings used as a hotel which it has occupied as tenant for its business for many years. Though a re-trial is always a last resort, unfairness or the appearance of bias at the original trial may mandate it.
- The appeal, whilst obviously fact-specific in that its outcome depends upon a detailed examination of the conduct of the trial in question, raises an interesting and more general question as to the parameters of the sometimes fine line between robust case management and disruptive judicial intervention such as to give rise to the risk of giving the appearance of bias.
- In this judgment, I first explain, briefly, the context to this appeal. I then turn to the authorities on apparent bias, before addressing the background to and the trial of the issues resulting in the appealed 9 February 2017 order.
The context of this appeal
- The Appellant (the Defendant at the trial) is the tenant of Norfolk Square (Northern Section) Limited (the "Respondent" or the "Claimant") which owns the freehold title to four listed properties in Paddington, London: 36, 38, 40 and 42 Norfolk Square, W2 (the "Premises"). The Appellant has occupied the Premises as the Respondent's tenant since 1988.
- On 1 April 1995, the Appellant and the Respondent entered into four 20-year leases in respect of the Premises, which commenced on 25 June 1995 (the "Leases"). The Appellant operated (and continues to operate) the Premises as a hotel called the "Continental".
- On 16 July 2014, the Respondent served notices on the Appellant under section 25 of the Landlord and Tenant Act 1954 (the "Act"). As a result, the Leases expired on 24 June 2015. The Appellant's tenancy then continued under the Act.
- On 15 June 2015, the Respondent issued a claim against the Appellant, seeking the termination of the Appellant's tenancy under section 29(2) of the Act, an order that no new tenancy should be granted to the Appellant, and an order for possession of the Premises, on two discrete grounds set out in sections 30(1)(a) and 30(1)(c) of the Act. These grounds were:
(1) the poor state of repair of the Premises resulting from the Appellant's failure to comply with its repairing obligations ("possession ground (a)");
(2) other substantial breaches by the tenant (the Appellant) of its obligations under the tenancy and other reasons connected with its use or management of the Premises including the making of unauthorised alterations to the property ("possession ground (c)").
- On 23 to 26 January 2017 and 30 January 2017, the Judge heard the trial of these matters, and, in particular, whether the Respondent could establish either or both of the grounds for possession it relied upon, as a preliminary issue in the Central London County Court.
- In her judgment of 8 February 2017 (the "Judgment") the Judge found against the Appellant. She found that both grounds were established and that these breaches amounted to an overwhelming case that the Respondent would be severely prejudiced by being required to grant new leases to the Appellant. In doing so the Judge made a number of critical findings in relation to the Appellant's director, Mr Moussoulides, and its expert witness, Mr Grove. Her judgment is clear and cogent.
- On 9 February 2017, the Judge ordered that the tenancies should determine on and the Defendant should yield up vacant possession of the Premises on or prior to 30 May 2017.
- On 1 March 2017, the Appellant filed a notice to appeal the 9 February 2017 order. This was stayed by Morgan J on 3 March 2017 who "queried the trial judge's jurisdiction to make an order for possession on 9 February 2017 in circumstances where the Claimant did not have at that date an immediate right [to] possession of the premises." The parties agreed that there was no such jurisdiction, and Morgan J made an order by consent on 26 April 2017 amending the Judge's order accordingly.
The nature and focus of this appeal
- On 26 June 2017, Barling J granted permission to appeal the order as so amended, on the papers. The appeal then came before me on 1 and 2 March 2018.
- It is notable (and quite unusual) that the Appellant does not appeal either the Judgment itself or any of the specific findings. Rather, it submits that the process underlying the Judgment was so unfair as to render its outcome void. It is the trial process rather than its result which is under review. (Although Mr Reynolds, Leading Counsel for the Appellant in this appeal, did at first submit that, had the Judge been "fair", it was possible that she might have made more favourable findings of fact or have exercised her discretion in a way which was more favourable to the Appellant, he did not press the point, and later declined to indicate any particular instances where this might have assisted the Appellant in reaching a preferable outcome.)
- As well as the usual skeleton arguments produced by both parties, the Appellant prepared a substantial document for the appeal entitled "Schedule of Alleged Incidents of Apparent Bias", which sets out approximately 170 "incidents" from the trial transcripts that it takes issue with, its reasons for doing so and the Respondent's position in respect of the same incidents (the "Schedule of Incidents" or "Schedule").
- I was also provided with the full transcripts of the trial (amounting to approximately 630 pages) and the full audio recordings of each day. The Schedule of Incidents identifies the sections of those recordings that I was specifically invited to listen to by the parties. As will be evident below, I have not found it necessary to comment in relation to each individual incident but rather have used particular such incidents to illustrate the general themes which the parties submitted to me were most relevant.
The question for this appeal
Fairness of the conduct of the trial
- The right to a fair trial, both under the common law and Article 6 of the European Convention on Human Rights (the House of Lords in Lawal v Northern Spirit Limited [2003] UKHL 35 having confirmed that there is no difference between the requirements in each) includes the right to a trial and decision conducted and made by a decision-maker free not only from actual bias but also from the appearance of bias. Justice most both be fair and be seen to be fair.
- Whether a trial was fairly conducted is a subjective assessment, necessarily made after the event and with the benefit of hindsight but without (of course) the benefit of any input from the relevant judge. In making that assessment, the reviewing court must bear in mind that (per Jonathan Parker LJ in The Mayor and Burgesses of the London Borough of Southwark v Maamefowaa Kofi-Adu [2006] EWCA Civ 281 at [142]):
"…within the bounds set by the Civil Procedure Rules, a first instance judge is entitled to a wide degree of latitude in the way in which he conducts proceedings in his court. However, that latitude is not unlimited. Ultimately, the process must always be the servant of the judicial function of dealing with cases justly (see the overriding objective expressed in CPR 1.1) …"
- It is a most important facet of the judicial function that the judge should always remain above the arena so as to maintain the detachment required of a judge. The judge must not take on the role of an advocate. If a judge intervenes in the process of the presentation and eliciting of evidence he runs the risk by such intervention of "descending into the arena", so as to become (per Lord Greene MR in Yuill v Yuill [1945] P 15 at 20)
"…liable to have his vision clouded by the dust of conflict."
- That necessity to remain above the arena persists notwithstanding the modern emphasis on active case management. To quote further from Jonathan Parker LJ's judgment in the Kofi-Adu case:
"Nowadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors…That said, however, it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel's submissions) must inevitably carry the risk so graphically described by Lord Greene MR. The greater the frequency of the interventions, the greater the risk; and where interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one."
- The same judgment continues in the next paragraph ([146]) as follows:
"It is, we think, important to appreciate that the risk identified by Lord Greene MR in Yuill v Yuill does not depend on appearances, or on what the objective observer of the process might think of it. Rather, the risk is that the judge's descent into the arena (to adopt Lord Greene MR's description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment and may for that reason render the trial unfair."
- This brings home the point that the assessment of unfairness is one for the reviewing court to make according to its perception as to whether there was a failure on the part of the judge to discharge his or her judicial function with the result that the trial was unfair. Actual unfairness in the way the trial was conducted, in other words, is the test. Kofi Adu is a case where that test was demonstrated to have been satisfied.
- A second case cited by the Appellant further elucidates the sort of conduct which may demonstrate such unfairness: that is the recent decision of the Court of Appeal in Re G (A Child) [2015] EWCA Civ 834. That case was relied on by the Appellant in the context of its alternative basis on which to set aside the judgment, an alleged appearance of bias; but the focus in that case, as in Kofi Adu, was really on actual unfairness, both in fact and as it appeared to the appellant and its counsel.
- The judgment of Black LJ (as she then was) in Re G illustrates both the generous ambit allowed to trial judges and yet also the sort of judicial conduct which may result in a finding that a trial was unfair:
(1) Black LJ was careful to acknowledge the inevitable difficulty of assessing retrospectively a fast-moving and unpredictable event like a trial, as well as for a range of judicial styles (at [31]):
"Managing a trial can be challenging, even for an experienced judge, and it is sometimes necessary to react without much time for refined consideration. Generous allowance always has to be made for this and also for the fact that, even with counsel's help, it is very difficult to tell from a transcript, or even from listening to a recording, precisely what was going on at all stages during the hearing. Furthermore, different judges have different styles and counsel and litigants can usually be expected to cope with the talkative, the uncommunicative, the robust, and even the irritated judge, provided the judge's behaviour does not stray outside acceptable limits".
(2) Like Jonathan Parker LJ in Kofi Adu, she accepted that the judge is plainly entitled to intervene legitimately to manage the case (at [38]):
"… a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage court time… Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance".
(3) As such, interventions need to be assessed not only quantitatively, but also qualitatively:
(a) As to their quantity, Black LJ noted that "[t]he fairness of a hearing cannot be assessed scientifically or mathematically", but did proceed to count interventions and to compare them (at [36] to [37]), concluding that (at [38]):
"[Nor is] the fairness of a hearing… dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel's cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch".
(b) As to their quality, Black LJ assessed the "nature" of the interventions, and, in particular, whether those interventions were justified and/or necessary (at [39] to [46]). In this regard, and "[s]tanding back again from the detail", Black LJ concluded that (at [47]):
"the judge's interventions on the second day of Ms Toch's cross-examination of the father differed in character from the sort of intervention, sometimes quite frequent but nonetheless part of the normal course of a trial, in which the judge simply seeks clarification of a page number or an aspect of questioning or, having an eye on the clock, seeks to move matters along. My assessment is that on this second day the judge's interventions were such that they largely prevented Ms Toch's cross-examination from getting off the ground or at least significantly hampered its progress and also took up a disproportionate amount of the limited time available to Ms Toch. They may also have undermined Ms Toch with the witness, diluting her questioning not only by interrupting its flow but also by leading the father to anticipate that it may be declared by the judge to be without proper foundation or badly put. This was a case in which, as the judge herself observed, the credibility of the parties was particularly material. Cross-examination was therefore of central importance in enabling the judge to make reliable findings of fact on their respective allegations. The judge's interventions were such that I am unable to be sure that the father's evidence was tested as was required."
(c) Again, Black LJ took into account that Counsel for the respondent, Mr Cameron, "was certainly not entirely free from interventions of the time management variety or from criticism as to the nature of his questioning". However, overall: "Mr Cameron did have a greater chance to develop his questioning than did Ms Toch and, in any event, even if that were not so, the fact that the judge intervened excessively in the questioning of both counsel would not make the process fair or provide reassurance that the findings that resulted were reliable" (at [48]).
(4) Importantly, especially since, as noted previously, in this present case no criticism is made of the Judge's judgment, Black LJ stressed that the existence of a "cogent and well-written judgment" could not redeem the issues with the hearing (at [52]):
"Mr Turner relied upon the existence of the judge's reasoned judgment which evaluated critically the evidence that she had heard and arrived at findings which were not a wholesale acceptance of either party's case, submitting that it was not indicative of a problem in the judge's approach. The difficulty with that submission, however, is that the careful and cogently written judgment cannot redeem a hearing in which the judge had intervened to the extent, as I have concluded was the case here, of prejudicing the exploration of the evidence".
(5) And in the final conclusion (at [53]):
"Before I come to what I would see as the consequences of my conclusions, there are a number of things that need to be said. The first is that I am very much aware of the pressures that there are on the family justice system and upon the hard-pressed and very hard-working judges in the Family Court who must ensure that the court's limited time is used to the best possible effect. This inevitably means that family judges have to manage hearings before them robustly and this requires intervention at times. The hand of fate, in this case in the form of the disruption caused by the storm, can sometimes make the judge's task almost impossible. The second is that I am deeply conscious of the fact that the one person from whom this court has not heard is the judge, who would no doubt have had much that she could valuably have contributed to the evaluation of the process. I have done my best to make allowances for this and I have thought long and hard about which side of the line of fairness the hearing in this case fell. The third is that the case is not about Ms Toch and whether she was treated fairly, although she has been mentioned frequently in this judgment. It is about whether the mother was given a fair chance to put her case and Ms Toch was simply one means by which she sought to do so, hence the need to look at the exchanges between the judge and Ms Toch".
Appearance of bias
- The second aspect of the Appellant's case is that the Judge's conduct of the case was such as to give rise to a reasonable perception of a real risk of bias. It is important to stress that there is no suggestion of actual bias in this case. Rather, and as is common ground, the issue for determination in this context is whether, on the facts,
"a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias"
(per Lord Hope in Porter v Magill [2001] UKHL 67, at [103]).
- That formulation of the question incorporated Lord Hope's "modest adjustment" to the formulation of the test set out by Lord Goff in R v Gough [1993] AC 646 (which had been put forward by Lord Phillips MR in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700), replacing the reference in the earlier test to a "real danger" by a reference to "real possibility" of bias (R v Gough at p.670; and see In re Medicaments at p.711 A-B and Porter v Magill at [99]-[103]).
- This question of whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias, is to be taken in two stages. First, all the circumstances having a bearing on the suggestion that the Judge appeared to be biased must be ascertained; and second, it must then be determined whether those circumstances would lead the fair-minded and informed observer to conclude that there was a real possibility that the Judge was biased (see In re Medicaments, at p. 711 A-B; and Porter v Magill, at [102]-[103]).
- As to the information and skills to be treated as being available to the fair observer, Lord Hope, in his leading judgment in Gillies v Secretary of State for Work and Pensions [2006] 1 All ER 731 (at [17]), said:
"... The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed, as Kirby J put it in Johnson v Johnson [2000] 5 LRC 223 at 243 (para 53) that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant."
- When making such a judgement, the informed observer cannot be ascribed all the knowledge and, indeed, assumptions of a trained judge. Baroness Hale of Richmond provided the following further guidance in that same case at [39]:
"The 'fair minded and informed observer' is probably not an insider (i.e. another member of the same tribunal system). Otherwise she would run the risk of having the insider's blindness to the faults that outsiders can so easily see. But she is informed. She knows the relevant facts. And she is fair minded. She is, as Kirby J put it in Johnson v Johnson (2000) 200 CLR 488, 'neither complacent nor unduly sensitive or suspicious'."
- Nevertheless, the informed observer is entitled, to at least some degree, to take account of the judge's experience as one of the circumstances that will likely make a real possibility of bias less likely. Patten LJ noted in the very recent Court of Appeal decision in Nigel Broughal v Walsh Brothers Builders Limited and Zurich Insurance PLC [2018] EWCA Civ 1610:
"The skeleton argument for the claimant on this appeal includes a submission that the balance of modern authority supports the need to discount the professional training of the judge on the twin grounds of public confidence and unconscious bias. As a general proposition, I do not accept that…. There is undoubtedly a need for the Court, in assuming the mantle of the fair-minded observer, to bear in mind that he is not a judge and therefore to take perhaps a more critical or questioning view of the degree to which the judge's training and professional objectivity would operate in the particular circumstances of the case. But the latter remain an obvious and important factor in the assessment which the lay observer will make as the decision in Hello illustrates."
- As to what constitutes "bias", Ms Shea QC (on behalf of the Respondent) submitted that Lord Goff's definition in R v Gough (at page 670) and paragraph [99] of Porter v Magill) above) remained apt: "bias" is the possibility that the decision-maker
"might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him".
- I was not taken by the parties to further authorities on the meaning of "bias", but in another very recent judgment in the Court of Appeal in another case of apparent bias, Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468, Leggatt LJ summarised (at [17]):
"Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case: see Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, para 28; Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117; [2008] 1 WLR 2528, para 53".
Interplay between actual unfairness and reasonable perception of bias
- Although for the purpose of analysis, and in conformity with the observation in Kofi Adu, I have sought to distinguish the two categories (actual unfairness and the appearance of bias), there is often an interplay between them: the symptoms of unfairness being also often likely to encourage a perception of bias. Put another way, the manifestations of a Judge's failure to discharge his judicial function may also be such that a fair minded and informed observer would conclude that there was a real possibility of bias.
- However, in that second context the court adopts the role or mantle of a fair-minded informed observer in order to assess whether, even if the evidence is not such as to require the Court to conclude that the judge did fail to discharge his judicial function so that the trial was unfair, nevertheless the way the trial was conducted would have led such an informed observer to conclude that there was a real possibility of bias.
- The tests are thus distinct, and require the Court to assess the conduct of the trial from slightly different perspectives, although the factual analysis may largely be applicable to both. I consider that the conflation of (and sometimes confusion between) the two in the Appellant's grounds of appeal and in its skeleton argument on appeal is better avoided.
- Taking the grounds of appeal, it seems to me that the Appellant's case as to the lack of an unfair trial is, on analysis, primarily based upon the way the Judge intervened in the oral examination of witnesses as set out in Appeal Ground (e). It is contended by the Appellant that the Judge
(1) interrupted and limited cross-examination by Counsel for the Appellant of the Respondent's witnesses unfairly in that these interventions (i) adversely affected the Appellant's ability to challenge the Respondent's case and (ii) undermined Counsel for the Appellant in the eyes of the witnesses; but
(2) not only did not impose any similar restrictions on the cross-examination of Mr Moussoulides but indeed questioned him "in a hostile manner herself…"
- In Appeal Ground (e), the Appellant also contends that the Judge's questioning of Mr Moussoulides (in what is stated to be "a hostile manner") reinforced "the impression that she had already reached her decision and/or an opinion adverse to Mr Moussoulides/the [Appellant] and creating the clear impression that the parties were not enjoying equal access to justice". But those are contentions which seem to me primarily to go to the second aspect of the appeal based on apparent bias, though there is some cross-over as I have acknowledged.
- Similarly, Appeal Ground (b), which is based upon the contention that, in contrast to the calm, non-interventionist, courteous treatment of the Respondent, its Counsel and witnesses, "everyone connected with the Appellant was subjected to almost unrelenting criticism and pressure and frequent interruptions", the Judge adopting "a hostile tone and obstructive approach to Counsel for the [Appellant] and its witnesses" may also support both aspects of the Appellant's appeal.
- So too may Appeal Ground (d), which asserts that "the Judge was quick to criticise steps taken by the Defendant's expert…before hearing his account of his actions", which might suggest both unfairness and a perception of bias.
- The other Appeal Grounds (a) and (c) seem to me to go to the contention that the conduct of the trial gave an appearance of bias. Thus,
(1) Appeal Ground (a) relates to a telephone conversation between the Judge and the Respondent's Counsel before the hearing, which she informed the parties in open court was to enquire whether the Respondent had received the Appellant's skeleton argument, since she (the Judge) had not. In its skeleton argument the Appellant elaborated that this was "highly irregular and contributed to the impression that the Judge had already established a trust in, and rapport with, the [Respondent's] Counsel prior to the commencement of the hearing."
(2) Appeal Ground (c) asserts that the Judge from an early stage appeared particularly hostile to Mr Moussoulides, the Appellant's only witness of fact, and appeared to have formed the view that he was an exploitative employer from a previous employment tribunal decision which was agreed later to be inadmissible (and see further as to this later).
- Before turning to the factual circumstances in more detail, I return briefly to a point flowing from one foreshadowed above. Although Mr Reynolds submitted in his opening submissions that no appeal was made with respect to the Judge's findings, or indeed as to her Judgment as a whole, he also emphasised that this could not rescue a flawed process. Relying on the passage from Re G (A Child) quoted at paragraph 23(3) above, Mr Reynolds submitted, that too much weight should not be given to the Judgment itself (which both parties acknowledged, I think rightly, had every appearance of being careful and considered), as that Judgment was undermined by the way in which the Judge reached her conclusions. The Judgment, he submitted, was not the pudding: it was the pastry on top, and the deficiencies with the trial rendered that pastry unstable. The matter therefore has to be judged not by the Judgment, but by the transcripts that record the trial of which it was the result.
- In a related context, there was discussion at the appeal hearing in relation to the relevance of the underlying merits of the case to the question for the appeal. Both parties agreed that I should not have in mind the underlying merits of the case at first instance: in short, as with the Judgment, my task is to assess the process, not the result. However, Mr Reynolds submitted in oral openings that it was relevant to bear in mind that both possession grounds on which the Respondent relied on at trial for refusing to extend the tenancy were questions of discretion: in such a context, where the issue to be tried was discretionary, and necessitated a balancing of factual matters, the perception of bias might be more easily formed than if the judge in question was simply applying law with a mandatory result.
- I accept that submission, so far as it goes; and I would add that the discretionary nature of the decision is also, to my mind relevant in the context of the assessment as to the actual fairness of the process: judicial intervention in the presentation and eliciting of the evidence to be assessed in making a judicial determination where the judge has discretion is that much more dangerous in terms of its propensity to cloud or unbalance the judge's approach to its exercise.
Circumstances of materiality in assessing the task confronting the Judge
- There is no real dispute that a number of background factors and circumstances had resulted in the Appellant's case being in a somewhat chaotic state, and that this materially impacted upon and complicated the Judge's task in conducting the trial.
- These circumstances were summarised by Ms Shea in her skeleton argument for the appeal as follows:
"…the Judge had to commence hearing the Claim without a skeleton argument from the Appellant, identifying what the issues were and what its arguments on those issues were; without adequate witness evidence, setting out the factual basis of the Appellant's case; and without a joint statement from the experts explaining what the areas of agreement and disagreement were, and summarising the reasoning of each expert on each issue in dispute; and with the Appellant's legal team, through no fault of theirs, being underprepared, with little familiarity with the factual background to the case or to the documents in the trial bundle".
- All are matters or circumstances which were not only known to the Judge and likely in fact to have informed her behaviour, but also can be taken to form part of the knowledge of and information available to the informed observer and his or her perceptions of the way the Judge was conducting the trial.
- They can be elaborated briefly as follows.
Prior proceedings between the parties
- The matter came to court against the background of two former sets of proceedings between the parties, in both of which the Appellant had taken an apparently hopeless stance and lost. In one it had proceeded against its own legal advice.
- As Ms Shea acknowledged in her skeleton for this appeal that "[i]n the normal course of events, the Appellant's conduct in earlier proceedings would be irrelevant to a judge trying a discrete claim". However, she submitted that here such conduct was relevant since it was relied on by the Respondent in the context of its case under possession ground (c) as demonstrating both repeated breaches of covenant and/or conduct by the Appellant in connection with its use and management of the Hotel and that the parties' relationship had irretrievably broken down so that a new tenancy should not be forced upon the Respondent. I accept that: and it was not really disputed.
- The Appellant's conduct in the prior proceedings was such as might well have put it in a poor light in the perception of a reasonable and objective observer:
(1) In the "Inspection Claim", the Respondent, with reluctance and after warnings, sought injunctive relief to require the Appellant to allow the Respondent access to the Premises in order to carry out certain inspections: the Appellant had persistently denied access for that purpose. The Appellant resisted contrary to its own legal advice (which it put in issue). Both the injunction and an application for summary judgment were then granted against it.
(2) The "Flood Claim" was brought by the Appellant against the Respondent and others (including Thames Water, whose pipe had burst resulting in flooding) in December 2013, in respect of an alleged breach of covenant to insure following a flood in December 2007. The claim was for in excess of £700,000. The Appellant soon dropped its claim against Thames Water and others, but continued against the Respondent until three weeks before Trial. The claim was described by Ms Shea as being "oppressive and baseless, to the point of being vexatious". It is consistent with that assessment (which the Judge also ultimately adopted in her judgment) that (I quote from Ms Shea's skeleton argument) "after repeated failures on the part of the Appellant to provide disclosure, the single joint expert who had been appointed to give evidence on causation and quantum withdrew on the basis that, notwithstanding multiple enquiries he had made and extensions of time he had had to work around, he had never been provided with the documents necessary to begin to understand the Appellant's claim, much less to form any opinion on the central questions of causation and quantum".
- Further, the Appellant's conduct in these prior proceedings, and especially in the Flood Claim, displayed a disregard for compliance with directions (whether timeously or at all) which in all probability informed the Judge in her approach to the Appellant's similar disregard for the requirements of the court process in the present proceedings. Put simply and colloquially: the Appellant had 'form' relevant to both its attitude as a litigant and its acceptability as a tenant.
The employment proceedings
- It is necessary briefly to mention one further set of proceedings. These were proceedings brought by a former employee against the Appellant, which resulted in a judgment "upheld on appeal, in which it was found" (to quote Ms Shea's skeleton argument for the trial) that the Appellant had "treated its employees badly" and "very poorly" (the "2016 Employment Tribunal decision"). The 2016 Employee Tribunal decision was not relied on in the Claim Form containing the particulars, but it was mentioned in the Respondent's skeleton argument for trial as evidence relevant to the Court's assessment of the Appellant's "behaviour" generally. Its relevance became more apparent during trial, as I explain further below.
Ill-health of Mr Moussilides
- Mr Moussoulides was described by the Appellant as its managing director and the individual having sole conduct of its hotel business and of this litigation. He was 71 at the time of giving evidence at the trial and he suffered from medical conditions including issues with his vision (according to him, he only had vision in half an eye) and with his hearing (although he had apparently decided to cope without hearing aids).
- Failures on the part of the Appellant in complying with interlocutory and procedural directions prior to the trial were ascribed by the Appellant to Mr Moussoulides' ill-health, as were deficiencies in his witness statement and evidence which were noted by the Judge (see below).
- However, it is also to be noted that at no point was it submitted on behalf of Mr Moussoulides that he was unable to cope with the demands of the trial: and no medical evidence to that effect was submitted (whether in the form of a medical report by a qualified doctor as is usually required (see Levy v Ellis-Carr [2012] EWHC 63 (Ch)), or at all). Indeed, what Ms Shea described as a "central mystery in relation to the issue of Mr Moussoulides's health" was what the Appellant wanted the Court to do as a result of his alleged ill health.
- Nevertheless, plainly the Judge was aware of Mr Moussoulides's own assertion and probably appearance of age and frailty; and the objective observer likewise would have had it in mind in building his or her perception of the Judge's conduct as regards Mr Moussoulides (both of itself and in comparison to her treatment of the Respondent's main factual witness, Mr Lazarus, who was in fact some fifteen years older than Mr Moussoulides).
Witness Statement of Mr Moussoulides
- Mr Moussoulides's witness statement, which from the outset attracted criticism and some degree of irritability from the Judge, was, according to Ms Shea's skeleton for appeal, "not fit for purpose" and "not CPR-compliant in that it did not set out the factual basis on which the Appellant intended to rely at trial".
- The Witness Statement was only served after and in last-minute compliance with an Unless Order. It had plainly been drafted in different stages by different people; first, in narrative paragraphs, presumably when Prince Evans (solicitors) were instructed; and then descending into short paragraphs prepared after Prince Evans had come off the record on 6 October 2016, referring only in non-specific terms to exhibited documents on a variety of topics (some relevant, some not). The exhibit itself was, Ms Shea explained, lengthy, and many of the documents that it contained were, in her words, "obscure as to provenance, meaning, and significance".
- The Judge's comments on the first day of trial indicated that she had read the statement prior to trial and had concurred (without prompting) with Ms Shea's later observations: she stated that it was "very short", "remarkably silent" as to the Respondent's requests for access to the Premises and, overall, did "not deal with the access [issue]" (which issue was, as I explain above, highly relevant to the issues for determination at trial).
- Ms Shea summarised in her skeleton for this appeal that the deficiencies with Mr Moussoulides's witness statement meant that "neither the Court nor the Respondent was able to know the factual case being made by the Appellant until Mr Moussoulides came to give evidence". This certainly appears to have been the case with respect to access: the statement merely stated in relation to all of the pleaded access requests over the years: (1) in its more narrative section that a: "letter we have sent to the Landlords [sic] solicitors also shows that we were being co-operative with Landlords [sic] surveyors wanting access"; and (2) in its listing end-section that: "I am exhibiting documents regarding "access" that I would like the Honourable Court to see "MMM13"".
- Ms Shea submitted (and it seems plain) that the evidence was deficient also with respect to the expenditure that Mr Moussoulides claimed to have made over a number of years in repairing the Premises, such expenditure being neither fully pleaded, beyond a statement that "substantial sums" (otherwise unparticularised) had been invested, nor dealt with satisfactorily in the witness statement.
- I return to the Judge's criticisms of the statement and Mr Moussoulides later. The point for present purposes is that the Judge's conduct and the perception of a fair minded and informed observer were or would have been informed by both the deficiencies in the statement and the reasons proffered for them.
Expert evidence
- Ms Shea's skeleton argument for the trial set out two distinct issues with the expert evidence available at the start of the trial, as follows:
(1) Mr Grove had "produced a second report in October 2016. However, the Defendant does not have permission to rely on a second expert report. The Defendant and Mr Grove has [sic] been put on notice, more than once, since 14 October that the Defendant did not have permission to rely on a second report, and the Defendant was asked whether it intends to apply for such permission. In the week before the hearing of the claim solicitors acting on behalf of the Defendant indicted that permission was going to be sought… Subject to the Court's approval, the Claimant will consent to that application".
(2) "In addition, Mr Grove unilaterally sent to the Court a document entitled "Schedule of Points Agreed and Not Agreed". Mr David has indicated that this document was sent by him to Mr Grove as a work in progress, and had not been agreed prior to Mr Grove sending it to the Court". The skeleton also stated that: "The two experts were in the process of producing a joint statement in accordance with the court directions ("the draft Joint Statement"). Without informing Mr David, and without obtaining Mr David's signature to the final version, Mr Grove sent the draft Joint Statement to the Court. Subsequent attempts to engage further with Mr Grove were met with the information that he was having difficulties obtaining instructions from his client (which by this time had yet again dispensed with the services of a solicitor and was representing itself). Notwithstanding this somewhat unsatisfactory state of affairs, the draft Joint Statement will form the basis of exploring at trial the question of the extent to which the breaches have been remediated".
- I accept Ms Shea's submission that the position with the expert evidence was a relevant circumstance from the outset of trial, as was its result: this was that the trial began, at least to some extent, with the "Court not knowing what the position was as between the experts, and what expert issues remained to be tried".
Late instruction of the Appellant's legal team for the trial
- The parties had been ordered on 18 April 2016 to file skeleton arguments for the trial not less than 3 days before its commencement. As indicated previously, Prince Evans' application to come off the record was granted on 11 October 2016. Trial was then listed to commence on 23 January 2017.
- The Respondent's skeleton argument was submitted on 18 January 2018. This skeleton dealt with the matters for determination by HHJ Baucher in some detail. It drew attention at some length to the conduct of the Appellant, including in the preceding Flood and Inspection Claims, and including the instructing and dis-instructing of a series of solicitors, relying on such matters as demonstrating: "the Defendant's wholesale unwillingness to cooperate reasonably with matters affecting the Premises".
- The Appellant's skeleton argument was relatively brief. It contained very little by way of referencing to or explanation of the detailed factual material. It was lacking in the detailed analysis and specific references to the record which characterised Ms Shea's skeleton argument for the Respondent. In addition, the Appellant did not file a skeleton argument in time.
- Ms Windsor explained to HHJ Baucher at the outset of trial that she had also been instructed "extremely late": late on the afternoon of Friday, 13 January 2017, with papers following on Monday, 16 January 2017. Trial then commenced at 12pm the following Monday, 23 January 2017. The Judge received the skeleton argument at 11.50am that day.
- The Appellant itself did not address at any length in its skeleton argument on appeal the difficulties which lay behind all this, preferring to focus on the conduct of the Judge and its alleged shortcomings. But difficulties there certainly were, as the Respondent acknowledged and emphasised. In her skeleton argument for this appeal, Ms Shea explained that Charles Russell Speechlys LLP ("Charles Russell") were the fourth set of solicitors engaged by the Appellant in the proceedings, and about the tenth set of advisers engaged by the Appellant over the three sets of litigation between it and the Respondent (i.e. the Flood Claim, the Inspection Claim, and the present proceedings). Charles Russell were instructed by the Appellant on or about Thursday, 12 January 2017 or Friday, 13 January 2017.
- Ms Shea further explained in her skeleton argument for appeal that the trial bundle "extended to 10 lever arch files, containing documents dating as far back as the mid 1980s… There was a huge amount of facts and materials for the Appellant's legal team to master by the start of the trial. No explanation was given by or on behalf of the Appellant as to why it had instructed its representatives so late in the day".
- As the Judge later acknowledged, Counsel for the Appellant was doing her best in the face of very difficult circumstances. However, I accept that the absence of one party's skeleton argument would have been an obvious omission prior to and on the first day of trial and, added to the other relevant facts and matters, may have contributed towards a certain view of the Appellant's conduct at the outset of trial, as well as to an understandable apprehension of the difficulties to be faced in proceeding to conduct the trial itself.
- A further difficulty faced the Appellant's Counsel (and her instructing solicitors): the inherited deficiencies, as explained above, with her client's sole witness statement. To attempt to counteract these difficulties, Counsel's skeleton argument did (Ms Shea submitted and I accept) introduce further evidence from her client on the topic of access to the Premises, not least by way of a schedule on various requests, which I was told accompanied it. Again, I return to this issue later, but it is sufficient for present purposes to say that the transcripts reveal that the Judge had read Counsel for the Appellant's skeleton on the first day of trial and that she had noted that it appeared that this document was "effectively giving evidence on behalf of her client". I agree that this was a relevant circumstance from the outset of trial.
Conclusions as to the relevant circumstances at the outset of trial
- In her skeleton argument, Ms Shea described the Appellant's approach in both the preceding two proceedings and in these proceedings as "shambolic". That is a highly coloured description; but that is how it appears from the transcripts that the Judge plainly regarded it; and I am afraid to say that, in my judgment, it would certainly have appeared to the reasonably informed observer that the Appellant's case was in a state of considerable disarray, with clear failures to abide by the Rules.
- This approach and the resulting deficiencies in the Appellant's case inevitably caused practical and evidential problems throughout the hearing which inevitably affected the Judge's approach and would have had to be taken into account by an informed observer. As Ms Shea submitted, and I accept, these included that:
(1) The Appellant's factual case was incomplete, and in many instances oblique: neither the Court nor the Respondent was able to know quite what it was until Mr Moussoulides came to give evidence.
(2) The Appellant's Counsel had to resort to putting the Appellant's case to the witnesses by reference to an amorphous bundle of documents exhibited but not properly cross-referenced or explained in Mr Moussoulides's witness statement, many of which documents were obscure as to their provenance, meaning and significance.
(3) Late delivery of the Appellant's skeleton argument, though not Counsel's fault given her very late instruction, meant that it could not be absorbed prior to the commencement of the hearing, which exacerbated these difficulties.
(4) The state of uncertainty as to what was and what was not agreed between the experts meant that the Court was left in a position of not knowing what truly remained on issue on that context.
(5) The deficiencies of his witness statement and the amorphous and incomplete assemblage of the Appellant's documentary evidence, coupled with Mr Moussolulides's personal tendency not to listen to or focus on the questions asked of him, and to ramble in response, led to a long and tortuous cross-examination.
- Ms Shea submitted in the round that "all this meant that the conduct of the trial was necessarily complex and disjointed, and to a degree cumbersome. The hearing cried out for firm management by the Judge, failing which it could have spiralled out of control…"
The trial
- With that background in mind, I turn now to assess the criticisms made by the Appellant of the way the Judge conducted the trial itself, and the Appellant's overall submissions that this resulted in an unfair process which impeded the Appellant in the presentation of its case, and which would have caused an informed and fair-minded observer to have perceived there to be a real possibility that the Judge was biased.
The essential elements of the Appellant's appeal
- As may already be apparent from my previous summary of the Grounds of Appeal, the core of the Appellant's case that the trial was unfair is that the Judge failed to allow the Appellant a fair opportunity to present and develop its case and defence. That failure, it is submitted, was the consequence of:
(1) her conveying personal hostility (a) to the Appellant's witnesses (both factual and expert) such as to unsettle and impede in the presentation of their evidence and (b) to the Appellant's Counsel such as to undermine her confidence and deter her from a full cross-examination of the Respondent's witnesses, and unsettle and impede her in her submissions; and
(2) her increasing interventions in the cross-examinations of the witnesses, so that (a) Counsel for the Appellant's cross-examination of the Respondent's witnesses was unfairly impeded and (b) the Judge in effect descended into the arena and in effect joined in the cross-examinations of the Appellant's witnesses.
- The Appellant's further (and broader) case as to the appearance of bias is that the Judge, from the outset, displayed such relentless hostility to the Appellant's case and the manner of its presentation, to the Appellant's antecedent conduct, and to all concerned in it on behalf of the Appellant (including Counsel), as to give rise to an appearance of bias in the perception of an informed observer, especially when contrasted with the treatment accorded by the Judge to the Respondent, its witnesses and its Counsel.
- The Appellant's essential complaints were helpfully illustrated in summary (and, the Appellant emphasised, not comprehensive) form in two documents to which I have already referred, (1) the Appellant's 12-page 'List of Interventions in the Appellant's Counsel's cross-examination and Re-Examination' and (2) the 67-page Schedule of Alleged Incidents.
My approach to the assessment of these essential elements
- Although I have found the analysis this provided of individual examples of the conduct complained of helpful, a recitation of each and every one in such a long list is not necessary and might obscure, rather than illuminate, the broader assessment ultimately required. Rather than address each complaint in turn (as for example, the Schedule of Alleged Incidents' implicitly invited me to do by providing a column for my comments next to each), I propose to address the two limbs of the Appellant's case (actual unfairness and the appearance of bias) under the following headings, which mirror the chronological sequence of the Trial and also the five categories of "incident" relied on by the Appellant in its skeleton argument for appeal (somewhat differently structured to their grounds of appeal, but covering the same ground):
(1) The conduct of the trial in the stages before the giving of evidence
(2) The Judge's interventions in Ms Windsor's cross-examination of the Respondent's witnesses and the suggestion it was thrown off course
(3) The Judge's interventions in the cross-examination of the Appellant's witnesses and the suggestion that she demonstrated hostility to Mr Moussoulides
(4) The expert evidence and the Judge's alleged hostility towards the Appellant's expert, Mr Richard Grove FRICS ("Mr Grove")
(5) Whether the Judge so undermined the Appellant's Counsel as to impede its case?
(6) The Judge's deployment of material from a 2016 Employment Tribunal decision subsequently agreed to be inadmissible
(7) The Judge's interventions in the course of Counsel's final submissions and the suggestion that she was hostile to Ms Windsor.
- Further, although I have emphasised that the two limbs of the Appellant's case are distinct, I address both limbs when assessing the impact of the Judge's conduct under those headings, whilst seeking to keep the distinct tests. That is to avoid repetition, given the common substratum of fact to which each limb relates.
The conduct of the Trial before the giving of evidence
The Judge's pre-hearing telephone call to the Respondent's Counsel
- As she was careful immediately to disclose in open Court, the Judge telephoned the Respondent's Counsel on the morning of the first day of the Trial, and before the hearing had commenced, and asked whether she had received any skeleton argument on behalf of the Appellant since she (the Judge) had not. Ms Shea replied that she had not. It is not suggested that anything more than that was said; and it was confirmed in the Appellant's skeleton argument for this appeal that the Appellant does not rely on the contents of the conversation. It is the occurrence of this conversation which is the first ground of appeal (and see paragraph [39(1)] above).
- Counsel for the Respondent told me (in its comment on the point in the Schedule of Incidents) that the Judge had first asked to speak to Ms Windsor (who, so I understand, is in the same chambers as Ms Shea): I do not understand this to be disputed. It is not clear why the Judge took it upon herself to do this, rather than making an enquiry by email (or, if she had one that day, through an officer or clerk).
- I should say that, for my part, I do consider that it was both unusual and unwise for the Judge to enter into such communications with the Claimant's Counsel about the lateness of the Defendant's skeleton argument in this way, even if the Judge's motive was to try to get her hands on a copy of the document, rather than to give vent to annoyance. A judge might sometimes email or cause enquiry to be made of Counsel as to the whereabouts of that Counsel's skeleton argument: but to telephone the other side's Counsel is quite another matter, and carries the obvious risk that the enquiry may be thought to be prejudicial. I sense that it was her recognition that it was unusual that prompted the Judge immediately to disclose it.
- Even so, I do not consider that this episode of itself suggests that the playing field was not in fact level; nor therefore that it demonstrates unfairness (if indeed it is relied on in respect of that aspect of the appeal).
- Further, and contrary to the Appellant's contention, I would not expect an informed and reasonably sanguine observer to conclude from that episode that "the Judge had already established a trust in, and rapport with, the Appellant's Counsel prior to the commencement of the hearing". My view is that, if anything and in the circumstances, it might have resulted in the observer in question gaining an impression that the Judge's understandable exasperation had prompted an enquiry which was intended to ensure that she had done everything possible to obtain a skeleton argument which the Appellant was admittedly at fault in not producing, and had, in irritated determination not to be held up, resorted to an unwise enquiry. I do not think that such an observer would have gained the impression thereby of some special rapport capable of distorting the trial process, even if that observer might have thought the approach unwise.
The Judge's complaints about the lateness of the Appellant's skeleton argument
- At the same time, the Judge gave vent to her exasperation and irritation about the lateness of the Appellant's skeleton argument (which was eventually filed at 11.50 am on the first morning) at the outset of the hearing.
- These opening exchanges, out of which several complaints made by the Appellant arise, which I set out in full in this section to give both context (as urged) and colour, were as follows:
"JUDGE BAUCHER: Yes, yes, well, before we start, I want an explanation from Ms Windsor. Yes?
MS WINDSOR: I apologise for the lateness of my skeleton argument, the reason being that I was only recently instructed as were my instructing solicitors…
JUDGE BAUCHER: Shall I strike out your defence? …
…
JUDGE BAUCHER: You are in complete breach of the CPR. The hearing notification, which has been issued for some considerable time, required and as did the initial listing by District Judge Jackson when she ordered it for four days, required skeleton arguments to be lodged by a certain time. …
MS WINDSOR: Your Honour, I do apologise again and I apologise on behalf of my instructing solicitors too. As I explained to my learned friend, and I should now also place on record, I was instructed extremely late. I've had no involvement in this case until last week and the same goes for my instructing solicitors too.
JUDGE BAUCHER: Yes, well, if anything turns on it in terms of costs at the end of the case, then we will deal with it then.
MS WINDSOR: I do apologise.
JUDGE BAUCHER: I appreciate that it is not necessarily your fault. When were you actually instructed?
MS WINDSOR: I was instructed on Friday late afternoon. I first saw the papers on Monday, last Monday. [i.e. the previous Monday, the trial having commenced on Monday 23 January 2017]
JUDGE BAUCHER: Yes, well, it is your clients, is it not? So, if there is anything [sic] costs arising from it, it will be your clients that are penalised. Thank you. Yes, Ms Shea."
- The Appellant submitted the Judge's expression of concern as to the delay, which they accept was in principle valid, was put in terms that were "unnecessarily stern" and betrayed evident "hostility" towards Ms Windsor. The immediate threat of adverse costs exacerbated the impression created. It was suggested by analogy to Re G (A Child), the "very unhappy start to the hearing" may well have undermined the client's "confidence in her Counsel's ability to put forward her case to the Judge" (per Black LJ at [49]) and built the impression of a real risk of bias.
- Further, the Appellant submitted that the Judge then appeared to accept Ms Shea's invitation to go further and make a connection between this procedural issue and the substantive merits of the case:
MS SHEA: …we will be relying on this latest conduct as merely the latest in a very long list of the way in which the [Appellant] through Mr Moussoulides conducts his relationship whether it be through litigation or under the terms of the lease…
…
JUDGE BAUCHER: Yes, so disrespect to you and now extending that to the court.
MS SHEA: That's it…."
- The Respondent submitted the Judge's irritation, and her expression of it, was understandable and that it was entirely proper to put the Appellant on notice that there might be costs consequences. The Respondent further submitted that the position in Re G (A Child) was entirely different. Counsel in that case was found to be unfairly criticised. Here, the criticism of the Appellant was justified: the delay was entirely of its own making.
- Ms Shea defended her suggestion that the Judge should regard the pattern of disregard and delay as characteristic of the Appellant's behaviour, and thus of relevance to the Appellant's suitability and thereby to the merits, as entirely justified; and the Judge's apparent acceptance of the suggestion as unsurprising and unobjectionable.
- Obviously, this was indeed an unhappy start to the hearing. There is no doubt as to the Judge's irritation; and there is a somewhat relentless edge to it in both terms and tone. I think the immediate threat of costs was rather oppressive and unnecessary.
- However, I do not think that either the Judge's expression of her irritation and disapproval, or her indication (if such it was) that this pattern of behaviour on the part of the Appellant was relevant generally to the substantive case, was unfair or founds any suggestion that it caused the Appellant to perceive that the Court was irritated with its Counsel for no good reason. The fact is that the Skeleton Argument was late; the reason was characteristic of the Appellant's habit of disregarding its obligations, whether procedural or substantive; it caused inconvenience to a no doubt over-stretched Judge. Judges may differ as to the extent of their irritation and the fierceness with which they evince it. But these variations are human; and they do not render one trial fair and the other not.
- Nor can it realistically be thought to have created an impression of a real risk of bias. The informed and realistic observer would appreciate that such judicial irritation is not ordinarily a sign of bias, but of the difficulties caused to the proportionate adjudication of a matter and to the smooth running of the lists of other matters when the Rules which are designed to facilitate the Court's task are not sufficiently complied with; and that judicial temperament varies without signifying bias or predisposition for or against a party.
- In my judgment, the criticism, and some measure of judicial irritation, were justified; and whilst the latter was perhaps overdone the more generally disorganised state of the Appellant's case and the back history of non-compliance with the Court's directions (to which I have referred previously) is also to be borne in mind.
- I do not consider that the fair-minded and informed observer, having considered the facts of the late instruction of solicitors and Counsel, and the consequent (very) late provision of the skeleton argument, would have concluded that the exchange indicated a real possibility of bias: that observer would in fairness have concluded that the Appellant's case had started badly because of shortcomings in its case and presentation of its own making, which it was neither impermissible nor unfair for the Judge to point out and criticise.
- For comprehensiveness, I do not think the analogy with Re G (A Child) is apposite. I accept Ms Shea's submission that the position in Re G (A Child) was very different. In that case, Counsel had been prevented from attending the hearing on time due to no fault of her own. The judge had then "laboured the issue" throughout the hearing "to the point of unwarranted, unfair criticism" (at [29]). There is no such "labouring" in this case. The relevant circumstance here is that the Appellant here knew of the direction requiring the provision of skeletons and chose, for whatever reason, to instruct solicitors and Counsel too late to ensure compliance with that direction.
The Appellant's conduct: Deficiencies in the content of Appellant's skeleton argument
- In addition to complaining about its lateness, the Judge described the Appellant's skeleton as "very cursory". Mr Reynolds QC, on behalf of the Appellant, submitted that this criticism and its repetition was unjustified and unfair. The Appellant also suggested that the Judge's criticism of the skeleton argument later in the day as being "vague" was gratuitous and unjustified. The Appellant accepts that the Judge was entitled to enquire why the skeleton argument was late, and to point out any failure to comply with the CPR, but contends that the Judge's repeated criticisms were inappropriate and misplaced, her rebuke of the Appellant's Counsel unnecessarily stern, and her later stated perception that all this was disrespectful to the Court unjustified in light of the explanation offered by the Appellant's Counsel.
- As I have already noted, the skeleton argument was, unsurprisingly perhaps in light of the Appellant's Counsel's late instruction and the at best amorphous, at worst, chaotic state of the Appellant's trial preparation before then, shorter and less detailed than Ms Shea's. No doubt Ms Windsor would have wished it to be more comprehensive and could well have made it so if she had had more time: but I note that in her judgment at paragraph 6 the Judge expressed gratitude for the diligence of both Counsel in the preparation and presentation of their written and oral submissions. I see no reason to think that it was not the best that could be done in the circumstances.
- The real question is whether the criticisms and their repetition and manner and tone of expression suggest antipathy on the part of the Judge such as to distort the decision-making process and render it unfair, or so as to convey an appearance of bias.
- I suspect that when the Judge first described the Appellant's skeleton argument as "very cursory" it was by way of encouraging Ms Shea to believe that she could read it fairly quickly, rather than by way of serious complaint. It may appear a bit snide: but I do not think the comment was as barbed as it is presented to have been. In any event, I do not consider that the Judge's comments, even if more acerbic than necessary, if indeed they were necessary at all, suggest anything more serious than that the Judge could not disguise her irritation as to the general state of the Appellant's case. Such irritation is probably counter-productive; but it is understandable, and it is not, in my assessment, indicative of an unfair process. Furthermore, and as I have already noted, the weight of documentation and the deficiencies in Mr Moussoulides's witness statement exacerbated the need for the Court to be guided though key documents, with accurate references: the Appellant's skeleton argument did not do that, and suffered in comparison with Ms Shea's skeleton argument, which did. In other words, whilst perhaps too often repeated, the Judge's expression of dissatisfaction is understandable. I do not think it suggests unfairness of approach.
- Nor, in my view, would a reasonable observer have thought the criticism to connote or give the appearance of bias, as contrasted with crotchety or grumpy behaviour such as is sometimes associated with judges, however regrettably, without suggestion of bias. A more sympathetic but nevertheless objective observer might have thought that such behaviour was the product of an over-stretched list, and the constant need in the interests of court users generally to get through a burdensome case load, even where the cases are in a state of preparation some way away from compliant with the CPR.
The Appellant's conduct: earlier proceedings
- It is also suggested by the Appellant that the Judge made a number of injudicious comments as to the Appellant's conduct of prior proceedings. The following opening exchanges were particularly cited:
"JUDGE BAUCHER: And this is solicitors numbering how many?
MS SHEA: I've lost count but I shall [inaudible] in closing submissions. I think-
JUDGE BAUCHER: Thank you.
MS SHEA: -about 11 or 12. Over the course of our… possibly not for this litigation.
JUDGE BAUCHER: Over life but in terms of this litigation? Well, tell me at the end as you say.
MS SHEA: I shall. I shall.
JUDGE BAUCHER: Thank you.
MS SHEA: But you pre-empt me, Your Honour, in that I was going to say that we will be relying on this latest conduct as merely the latest in a very long list of the way in which the defendant through Mr Moussoulides conducts his relationship whether it be through litigation or under the terms of the lease [inaudible]-
JUDGE BAUCHER: Yes.
MS SHEA: -the same relationship-
JUDGE BAUCHER: Yes, so disrespect to you and now extending that to the court.
MS SHEA: That's it."
- In the skeleton argument for its appeal, the Appellant submitted that the Judge's reference to "solicitors numbering how many" was a "hostile comment"; and that this, the reference to the prior proceedings and the conduct of Mr Moussoulides being indicative of disrespect both to the Respondent and the Court, and the constant sniping in which the Judge indulged was part of a relentlessly hostile and belittling approach to the Appellant and all connected with it such as to undermine their confidence and ability to put forward their case.
- With the benefit of hindsight, and a viewpoint away from the intensity of court, I think it would have been better for the Judge to keep these thoughts to herself, or expressed them in a way which could not be mistaken for being snide. It is of course sometimes tempting, occasionally even irresistibly so, for a judge to seek to put before the advocate the reasons for their irritation: but experience tends to show that it is seldom productive.
- That said, the question is whether these expressions of dissatisfaction with the state of the Appellant's case so undermined Counsel and those concerned in the Appellant's case as to impede and prejudice its fair presentation and adjudication. I do not accept that they did. What, in my assessment, impeded and prejudiced the presentation of the Appellant's case was the fact that the changes of representation, the Appellant's habit of ignoring legal advice (demonstrated especially in the earlier proceedings), and all the deficiencies previously noted, meant that by the time of trial it was not in a position to put its case forward with cohesion and clarity. The Judge's comments simply reflected this reality.
- In this respect, I also agree with Ms Shea's submission at the appeal hearing that the relevant background to this comment was the reference in her skeleton argument to "the haphazard way in which" the Flood Litigation "was conducted with many changes of solicitor acting for the Defendant" (see paragraph [49(2)] above). Plainly the Judge had also just received submissions as to the late instruction by the Appellant of Ms Windsor and her instructing solicitors, and had just been directly inconvenienced by the result of that late instruction through the late receipt of the Appellant's skeleton. In all the circumstances, I do not think that the fair-minded and informed observer would have taken her comment on the Appellant's conduct as being unduly hostile, such as to be symptomatic of apparent bias.
The management of the trial and running order
- The Appellant raised two further complaints which arise out of the early exchanges as to the Judge's general management of the trial: first, that she declined to hear opening submissions; and second, that she dealt unfairly with preliminary matters relating to the expert evidence.
Direction that there be no oral opening submissions
- As to the first point, which may be dealt with briefly, the Judge explained her decision at the hearing to discourage oral openings (and it is to be noted that though Ms Shea seems to have indicated some surprise neither Counsel objected at the time) on the basis that the case seemed "relatively straightforward" and that she thought that
"the closing submissions will be more important once we have heard the evidence".
- Whatever the merits of this decision as a matter of case management I have no doubt that it was justifiable given the time pressures on the trial. It is not unusual; the purpose of oral openings is to orientate the court so that it may understand the issues at stake and the evidence: if the relevant judge does not need further assistance then that surely is a matter for them: in my view, it is very well-within the wide degree of latitude to be afforded to the Judge in the conduct of proceedings in her court; and it is not unfair. It is not suggestive of any bias either: and it applied equally to both parties.
The Judge's criticism of the Appellant's expert's pre-trial conduct
- Of more moment perhaps is the Appellant's contention that the Judge was unjustifiably critical of the pre-trial conduct of the Appellant's expert witness, Mr Grove, and developed an antipathy, perhaps even an appearance of hostility, towards him which caused her to be unfair to him, or to seem to have taken against him, when he came to give evidence.
- I shall address the second point (as to the Judge's treatment of Mr Grove in the course of his evidence) in greater detail later. My principal focus now is on the Judge's strictures in relation to his pre-trial conduct.
- As to that, it is apparent from the transcript of the trial that the Judge demonstrated considerable irritation about (a) the lack of a proper joint statement despite the directions for one which had been given, (b) the lack also of a schedule of points agreed and not agreed and a joint narrative to accompany and explain it and (c) Mr Grove's conduct in unilaterally filing with the Court a schedule which had not been agreed or signed off by the Respondent's expert.
- It is to be noted that this irritation was first directed at Ms Shea, though it was subsequently expressed also to Ms Windsor. The Appellant's real complaint arises not so much in respect of the Judge's irritability but in respect of exchanges a little later with Ms Windsor which seemed to focus blame on the Appellant's expert (a Mr Grove) and to threaten him with wasted costs when Counsel for the Appellant suggested that a little more time for compliance might in all fairness, and profitably, have been made available; and that the threat, once again, of a penalty in costs was made by the Judge without hearing the explanation that the Appellant had to offer.
- Two particular complaints concern the following exchanges:
"MS SHEA: …We were told [on Friday that Mr Grove] was not available and what was being sent to the Court was adequate. In our submission, it isn't remotely adequate. What the court needs is the usual narrative which summarises this…100-page schedule…and tells the Court exactly what's going on and what bits aren't agreed and what bits are agreed. It was suggested that Mr David [the Respondent's expert] would produce such a narrative or table summarising, a large table, and that was also rejected on the basis of what was being sent to the Court was enough. In our submission, it's not enough and we would be delighted if the Court would order Mr Groves to meet Mr David to do what they're supposed to do, to produce a draft table -
JUDGE BAUCHER: Yes, well, I will have to hear from Ms Windsor on that but it seems self-evident to me that this is what is going to happen…
MS WINDSOR: My learned friend's suggestion seems very sensible and-
JUDGE BAUCHER: Well that is not going to happen in five minutes and, whilst I am delighted that you agree to it, the effect is probably going to be that this case is stood out tomorrow at the earliest so in which case your client is going to be penalised in respect of wasted costs.
MS WINDSOR: Your Honour, I fully understand the court's displeasure and I will convey it in-
JUDGE BAUCHER: It is not a question of displeasure. It is a question of practicality. If these experts now have to go through this schedule, which I cannot… All these witnesses are here and the consequences [sic] that they are going to be penalised in respect of costs.
MS WINDSOR: Might I take instructions for a moment, please?
JUDGE BAUCHER: Yes.
MS SHEA: Can I suggest we could get on with the witness evidence of fact today while the experts-
[Crosstalk]
JUDGE BAUCHER: Yes, well, I would be content to do that.
MS SHEA: I'd be grateful.
JUDGE BAUCHER: Yes.
MS WINDSOR: I would as well. If I could just take instructions for a moment.
JUDGE BAUCHER: Yes.
[Pause]
MS WINDSOR: Your Honour, having taken instructions, I wonder if we might have until two o'clock so that we can ensure that the experts are understanding the right task with the right documents and then start the-
JUDGE BAUCHER: No, you should have done that on Friday when a legitimate request was made. We are going to start now. You can do it at one o'clock if you want with your expert but I am going to get on with the evidence. The days have gone, they went years ago, of the parties dictating to the court how the court will use the court's time. This case had had ample notification of four days and it seems to me that your expert does not understand his obligation to the court, sending in a draft agreement without any agreement with the other expert. I do hope you have reminded him of his CPR 35 obligations. His obligation is to the court. It does not assist the court to send in a draft, does it? So, you can remind him of that at lunchtime."
- The Appellant's complaints arising out of this exchange are two-fold.
(1) First, the Judge's decision not to adjourn until 2pm is criticised, particularly on the basis that this had "potential repercussions for [Mr Grove]'s cross-examination".
(2) Second, the Appellant submits that the Judge did not wait to hear an explanation on behalf of Mr Grove before threatening wasted costs and stating that he did "not understand his obligation to the court":
- For my part, I must admit that I cannot see any substantial basis for serious criticism of the Judge in this regard. The Judge was entitled to expect the experts to know their obligations and understand their task. They were able to get along with doing what they should have done whilst the matter proceeded, enabling review by client and Counsel over lunchtime. Adjournment would have further delayed the hearing: and it was (as it proved to be) unnecessary. The decision was, to my mind, well within the "wide degree of latitude" afforded to the Judge.
- There was, in my view, no unfairness in the Judge's approach; and I have no reason to suppose that an informed observer would have perceived the Judge to be doing anything more than to try and get the experts to do what was required of them under the rules without delay, and to maintain the momentum of an already delayed trial. I see no basis at all for any perception of bias in this regard.
- As to the further threat of costs, my view is that the observer would consider the Judge to be, again, criticising the Appellant's conduct and not unjustly in the circumstances, as the difficulty with the expert evidence again seems to primarily be a consequence flowing from its dis-instruction and late instruction of solicitors.
- As to the comment regarding Mr Grove's understanding of his obligations, the fact was that he should not, and should have known that he should not, have sent his report to court in draft and without any agreement with the other expert. It is the sort of thing which does happen when the expert is not guided by his instructing solicitors; but it reveals a lack of understanding nevertheless. I note in this respect that Mr Grove did later provide his explanation during the course of his cross-examination. The Judgment summarises what the Judge thought of that eventual explanation:
"He was unable to provide any coherent explanation as to why he had done so [filed the schedule] during cross-examination. He seemed to believe that it was sufficient for the schedule to be lodged at court without any signature for either party. Further, he did not seem to appreciate the significance of the accompanying narrative. He initially denied that they [the directions] had been received by the email attaching it, until the email was produced. He said he had only filed the schedule, as the court order had only referred to such, which flew in the face of his earlier evidence, that he had never seen the court order. If he was only aware of its substance, he could have clarified the position with Mr. David. He said that he had not contacted Mr. David, as the time period was about to expire and he thought any statement of truth could be added later. He then, rather lamely, referred to the fact that he had several commitments, an attitude which prevailed even at the conclusion of this trial...".
- The deficiencies of this subsequent explanation cannot of course have been the basis of the Judge's exasperation at an earlier stage, but do tend to suggest that the Judge's earlier criticisms of Mr Grove were neither wide of the mark nor unjustified. In my view, the hypothetical observer whose reaction I must envisage would at worst have thought that the Judge was being a stickler, perhaps unduly unsympathetic to error, and arguably over-zealous in her management of her court; but not that she appeared biased.
Conclusion as to the opening of trial
- In summary, therefore, of the opening of the trial, I have concluded that the fair-minded and reasonable observer would have formed the impression that, stepping back from the detail of the discussions, a good deal of time at the outset of trial, which was already limited in the circumstances, was taken up by inconveniences and issues almost exclusively of the Appellant's own making and which would lead to ongoing difficulties in the efficient conduct of the trial.
- The Judge's comments were often sternly expressed, and from listening to the transcripts, it seems to me that her tone betrayed considerable irritation which on occasion went beyond understandable tetchiness. Her expression and tone must have made for an uncomfortable day in court, not least for the Appellant's Counsel, who had been instructed so late and was trying her best in difficult circumstances. The fortitude required of Counsel in such circumstances must have been sorely tested.
- But the Judge's criticisms, even if somewhat acerbically expressed and pointed rather personally, were but unjustified; and in my view they would certainly not, in their complete context, and given the wide discretion permitted to the Judge in the management of her Court and the case, give rise to an appearance of bias. It was open to the Judge to express dissatisfaction with the Appellant's conduct, and she did so. The position is very different from that which obtained in Re G (A Child): here, the Judge was not unjustifiably annoyed by the party which had caused disturbances to the efficiency of the proceedings, not by some issue unconnected to the case.
The Judge's conduct of the giving and cross-examination of evidence
- I turn to the remainder of the hearing until completion of the evidence, which occupied the Court for some three days, sitting late. In its Skeleton Argument, the Appellant depicted this as follows:
"The Judge's hostility towards the Defendant and any person connected with it continued almost unrelentingly…The Judge treated Counsel for the Claimant [Respondent] and its witnesses with courtesy and respect whereas she adopted a hostile tone and obstructive approach to counsel for the Defendant [Appellant] and its witnesses. The result was that the Claimant was permitted to present its case calmly without obstruction or undue interruptions whereas everyone connected with the Defendant was subjected to almost unrelenting criticism and pressure which significantly impacted on the Defendant's ability to present its case."
Cross-examinations of factual witnesses
- There are in essence five points to be addressed under this heading: it is submitted by the Appellant
(1) First, that the Judge's treatment of the Respondent's main witness, Mr Leon Lazarus ("Mr Lazarus"), was notably protective and her interventions blew the Appellant's Counsel off course and impeded his full and fair cross-examination;
(2) Secondly, that the Judge was similarly over-interventionist and critical of Counsel in the case of Ms Windsor's cross-examination of the Respondent's other factual witnesses, Mr Ralph Last ("Mr Last") and Mr Barber;
(3) Thirdly, that from the outset and throughout the course of the cross-examination of Mr Moussoulides the Judge
(a) appeared unnecessarily awkward in permitting some short elaboration of his statement;
(b) showed a distinct lack of sympathy for him personally, particularly when compared to her approach to the Respondent's witnesses and especially Mr Lazarus: and that this was despite evidence of Mr Moussoulides's ill health, which it is suggested the Judge was over-reluctant to make any concession about;
(c) whilst giving a much freer rein to Ms Shea in her cross-examination of Mr Moussoulides, interrupted his answers repeatedly, and permitted interruptions by Ms Shea, and in such a way as to undermine Mr Moussoulides and impede him in giving his evidence;
(4) Fourthly, that the Judge was hostile to Ms Windsor and upset and curtailed her re-examination of Mr Moussoulides; and
(5) Fifthly, that the Judge's approach to a 2016 Employment Tribunal decision against Mr Moussoulides was fundamentally flawed and wrongly influenced her entire approach to his character such as would prompt an observer to feel there was a real possibility of bias.
The Judge's careful treatment of Mr Lazarus and interventions in his cross-examination
- The transcript appears to me to confirm that the Judge was notably accommodating to Mr Lazarus, a gentleman in his mid-80s (he was aged 86 at the time of his witness statement). Before he took the witness-stand, she indicated that she would wish to ensure that he was as comfortable as possible, and that he would be given as many breaks as he needed.
- Thereafter, the Judge does appear to have carefully controlled the questioning, admonishing Counsel for any lack of precision, and stepping in proactively, and sometimes peremptorily, to prevent Counsel putting any factual proposition not demonstrated to be in the evidence. In particular, the Judge, in defending (the Appellant might say shielding) Mr Lazarus, was also somewhat hectoring of the Appellant's Counsel, frequently criticising the form in which the questions were asked as repetitive, or too long, or too vague.
- The Schedule of Incidents records a variety of forthright interventions by the Judge: some sharply critical of the way Ms Windsor was proceeding without identifying the material in the evidence by reference to which she was asking questions, which the Judge also depicted as discourteous; some admonishing Counsel for reading long passages to Mr Lazarus and unreasonably (in the Judge's view) expecting Mr Lazarus to assimilate them and answer questions on them; and some borne of and expressing repeatedly the Judge's sense that Ms Windsor was putting matters for which there was no evidential basis.
- The Judge also reinforced her interventions with repeated and rather remorseless references to her view that the witness statement of Mr Moussoulides was inadequate, and non-compliant with CPR 32, and that if and insofar as this caused wasted time it would sound in costs.
- All this is said to be illustrated by the following extracts (in which in each case the speaker is the Judge unless otherwise expressly appears):
(1) "Again, if I find these proceedings are slowed down because of the failure of your client to produce a proper witness statement, then that is something which will be factored in in costs whatever the outcome of these proceedings".
(2) "I will be the one that is case-managing this case and if I am not satisfied that your statement has complied with CPR 32, then that will give rise in respect of costs…".
(3) "It could have related to anything… That is the best we have got, is it?", to which Ms Windsor replied: "It is, yes. It's the best I've found in a week", and to which the Judge further replied: "Yes, well, how can the witness answer that? And we do not do cross-examination on the hoof either. Anything else you want to put to this witness?". (The immediate context of these comments being that Ms Windsor had directed the Court to a chartered surveyor's letter which appeared to confirm that the Appellant had spent £226,000, but without providing any further details of that expenditure);
(4) "That is far too vague… [but] it is your case. You cross-examine how you wish but you will do so by treating the witness in a courteous way and by that I make clear what I mean: namely that you take the witness to the documents to substantiate the proposition you are putting or you take him to the witness statement. First of all, that is a courtesy of any witness, secondly given his age and the long period we are talking about. If you cannot do that, it strikes me you cannot cross-examine on it". (The immediate context being that Ms Windsor had proposed that "[p]erhaps I could ask him a more general question rather than the specifics which I was going to ask him about which is whether he has been aware of this defendant carrying out programmes of work over the years?"; and
(5) the Judge's comments in the following exchange:
"Ms WINDSOR: And then over the page, there's another figure at paragraph 11 which states that his accountants have itemised expenditure for the period 30 September 2006 to 30 September 2014.
JUDGE BAUCHER: And where are we to find this then?
Ms WINDSOR: It's file number 10, E, page 2,472.
[Pause]
JUDGE BAUCHER: Again, there is no breakdown. It is just figures. That is the best we have got?
MS WINDSOR: Yes.
JUDGE BAUCHER: Well, can you comment on that at all?
A. No comment to make.
JUDGE BAUCHER: Yes, well, I think that is probably a fair summary of it… Yes."
(Ms Windsor then moved on to her next topic.)
- The last two pages of the transcript of the cross-examination (of Mr Lazarus), in particular, relating to two important aspects of the Appellant's case, are replete with interventions by the Judge, the nature of which appears from the following extracts:
(1) When Ms Windsor returned to an issue as to whether Mr Lazarus knew from Mr Last of certain alterations in the property:
"MS WINDSOR: What the defendant will say in due course is that your agent, Mr-
JUDGE BAUCHER: Is this in the statement? If so, take [the witness] to the paragraph.
MS WINDSOR: It's going to be my submission.
JUDGE BAUCHER: Well, I am not going to have submissions put to the witness";
(2) Later on, when the Judge queried whether listed building consent had been obtained, and it emerged that it had not:
"So, your client's case is that we carried out these works for 15 years, nothing was done about it, there was not any listed building consent sought and we just bored those holes through the walls and put windows in. Yes, anything else to this witness?'.
Ms Windsor retreated to saying that she was "nearly finished" and asked only one more question before concluding her cross-examination.
- In addition to these matters, Mr Reynolds also submitted that a good many of the Judge's interventions in the cross-examination of Mr Lazarus were based on an incorrect understanding of the proper scope of cross-examination: it is suggested that the Judge incorrectly took there to be, and sought to apply, a rule against asking a witness a question, unless that question was tied to a fact or matter already adduced into evidence, either in a witness statement or in a document. Mr Reynolds submitted that this was incorrect: a cross-examiner must be entitled to ask open questions about facts or matters which are not already in evidence, if such facts or matters are relevant to the issues to be tried.
- Dealing with that last point first, it seems to me that the Judge was doing something rather different; and that in fact, she was:
(1) Requiring the witness to be shown the relevant parts of the documents or witness statements that he was being questioned on (see the example at paragraph [131] above); and
(2) Warning off Ms Windsor from introducing evidence by way of submission (see: "What the defendant will say in due course…"; and "It's going to be my submission…").
- It appears from the transcript that these two slightly different requirements were relatively strictly imposed, because of two relevant circumstances revealed by the quotations set out at paragraph [131] above, and their broader context: (1) Mr Lazarus' age, which the Judge seems to have taken into account, particularly in not wanting him to be subjected to memory-tests on the evidence; and (2) the inadequate and incomplete nature of Mr Moussoulides's witness statement, and the attempt to remedy this through the skeleton and through, it appeared, submissions. I do not believe that the Judge's management of the questioning in this way was improper or unfair, nor that it was indicative of apparent bias, in and of itself, in these circumstances.
- Turning to the broader point made that Ms Windsor was blown off course by the Judge's interventions, it seems to me unsurprising that Counsel found these interventions, in the manner of their expression, tone and frequency, discomfiting. She was cross-examining in very difficult circumstances: she was instructed very late; her client's case was ill-prepared; the witness was of an age and infirmity to elicit the sympathy of the Judge; and the Judge was plainly of a mind to be strict. There was undoubtedly a strong headwind. Counsel's cross-examination of Mr Lazarus was somewhat hesitant, and it was quickly concluded (occupying 19 pages of transcript, compared to some 255 pages of Ms Shea's cross-examination of Mr Moussoulides).
- I have been especially concerned to assess the Appellant's contention (in the Schedule of Incidents) that the Judge disparaged the case/line of questioning by the Appellant's Counsel and put pressure on her to stop asking questions of Mr Lazarus, particularly given the rather sudden end of her cross-examination.
- The question is whether the Judge's interventions were such as to blow reasonably resilient and experienced Counsel off-course, and so undermine her, as to upset the actual or apparent fairness of the process or give rise to a reasonable perception of the risk of bias.
- I must admit that I have pondered this with some anxiety. The Judge was entitled, of course, to insist on the usual rules; and her interjections were for the most part, at least, plainly to that end. But the way in which she did this, and the occasionally dismissive form and tone, would have upset more senior Counsel than Ms Windsor. The pall of judicial disapproval of the state of the Appellant's case hung over the proceedings, and it is possible that this and the Judge's impatience may have added to, and certainly would have done nothing to alleviate, Ms Windsor's difficulties in pursuing her cross-examination with cohesion and penetration. A reasonable and objective observer would, I think, have sympathised with Ms Windsor in her predicament: he or she would certainly not have envied her task.
- But predicament it was: once again it was the result, as I see it, of the fact that the case, through no fault of Counsel or indeed of the solicitors instructing her (who were themselves instructed only on the same day as Counsel), was not backed up with the evidential wherewithal, nor in a sufficiently orderly state, to enable Counsel to respond to the Judge's criticisms by detailed referencing and presentation of factual material.
- The Judge's interventions when Ms Windsor sought to cross-examine on the issues as to whether the Respondent had ever sought to exercise its right to access or become aware of the alterations said to have been unauthorised are an example: the Judge was not unjustified in requiring Ms Windsor not to quote the terms of the lease but to give referenced examples in the evidence; but Ms Windsor was not in a position to do so.
- With particular reference to the rapid end of her cross-examination, I note also that Ms Windsor did not make any such complaint at the time. I accept as to that last point that Counsel may have felt that discretion and silence was the better part of valour. But Counsel's sometimes unenviable job is to be resilient and robust; and the Court is entitled to expect this too, with allowances naturally made for particularly inexperienced Counsel (which Ms Windsor is not, having been called in 1995). I do not doubt Ms Windsor's fortitude or resilience; and I sense that she would have persevered had she only had the material to enable her to do so: but she did not.
- I have concluded that though the Judge was, to my mind, perhaps unnecessarily acerbic, and in this part of the trial, as earlier in it, her frequent references to case management and cost sanctions may suggest that she was perhaps also over-keen to show mastery of the process and that there would be tight management and no nonsense in her Court, her interventions and criticisms were not misplaced in substance, even if in retrospect they may be thought rather too strident in their assertion.
- I do not accept that they suggest or amount to unfairness in the conduct of the trial; nor that a reasonable informed observer would have perceived there to be any real possibility of bias.
Cross-examination of Mr Last and Mr Barber
- I have reached like conclusions in respect of the cross-examinations of the other factual witnesses for the Respondent, Mr Last and Mr Barber.
- Ms Windsor's cross-examination of Mr Last was her longest of the trial. This cross-examination proceeded for approximately 36 pages of the transcript (page 36 to page 72), during which time: (1) Ms Windsor asked Mr Last approximately 175 questions; and (2) the Judge spoke approximately 90 times, including asking one question to Mr Last.
- The Judge's interventions were thus frequent (including on almost every one of a sequence of 25 pages); and some, many indeed, were expressed in abrupt and critical terms. The Judge was especially vigilant to forestall cross-examination on the terms of the relevant leases, their interpretation being, of course, a matter of law. Again, an observer would have had sympathy for Ms Windsor and might have felt that the Judge was high-handed and difficult. But I do not think this crossed the line into dislocating the process or suggesting bias.
- As in the context of Mr Lazarus, the Judge's interventions were not unjustified. For example, in insisting that the witness could not sensibly be asked about the true construction of the terms of the leases, she was plainly right, even if she made the point rather too forcibly; and, regrettably and no doubt because of her late instruction and understandably flustered state, Ms Windsor did occasionally demonstrate lapses in her knowledge of the case which in the circumstances of her late instruction the Judge might have been more sympathetic about, but was entitled to expose in protecting the witness.
- Mr Barber's cross-examination was short (approximately 5 pages of the transcript) and one complaint is made in respect of it by the Schedule of Incidents, as to the Judge being "disparaging of [the] question put". Ms Shea submits in response to this complaint that the Judge was justified: the witness had already answered the question asked. To my mind, the interruption was justified in its context. The fact is that this sort of intervention is to be expected, even though I well remember how unsettling it could sometimes be. I am not persuaded that it was such as substantially to deflect or prevent Ms Windsor from advancing the Appellant's case through her cross-examination of Mr Barber.
- Nor to my mind is it demonstrative, in itself, of apparent bias. I say "in itself" because, of course, such interventions and the Judge's conduct during the cross-examinations on behalf of the Appellant of the Respondent's witnesses also must be compared to her conduct during the cross-examination on behalf of the Respondent of Mr Moussoulides, who was the sole witness of fact for the Appellant. I turn therefore to consider the complaints levelled against the Judge in respect of her treatment of Mr Moussoulides and her intervention in the eliciting and examination of his evidence.
The Judge's treatment of Mr Moussoulides and her interventions in his examination
- Three of these complaints relate to matters arising even before cross-examination really began.
- First, an issue arose in relation to a document prepared by the Respondent's expert, which contained a summary of planning applications made by the Appellant. The Judge allowed Ms Shea to hand this up. As Ms Shea explained at the time, the summary contained references to certain applications which were contained in the trial bundles, as well as references to applications which were not. The Appellant complains that, although Ms Windsor appears to have been asked whether this document was "agreed" (and to have confirmed this), this cannot have been a reference to the summary of the planning applications itself, given that Ms Windsor had only just been given it.
- Second, the Judge initially refused to accept a bundle containing a copy of Mr Moussoulides's witness statement along with its exhibits, which had been prepared by his solicitors overnight to assist with locating the documents which Mr Mossoulides rather haphazardly referred to in the statement part of which he had personally drafted without legal assistance. She did so, it appears, because she misunderstood the files to amount to five new lever arch files.
- Third, Ms Windsor applied for permission to adduce evidence in chief from Mr Moussoulides in reply to three matters arising out of Mr Lazarus' witness statement. The Judge expressed some not inconsiderable irritation at the request, which was not an unusual one.
- I return later to the first of these issues, which was returned to subsequently during the course of Mr Moussoulides' cross-examination, at paragraphs [184] to [187] below.
- I do not see the basis for the second complaint when the context of the exchange is examined: the Judge asked whether the new files were "all that box over there" and Ms Windsor confirmed this. The Judge then, rather sharply, did say that the box
"can stay there. And that goes to show that, and I am putting on the transcript, there is a five lever arch there of exhibits put next to a statement. How can that be a proper assembled statement? What should have happened is, he should have referred to those documents properly within the construction of his statement".
However, once Ms Windsor had explained that the box contained five copies of one file, the Judge accepted a copy (although not without going on to comment: "But in terms of his statement, it is not sufficient just to say, 'these are my exhibits'…").
- As to the third complaint (reluctance to permit questions in examination in chief), the fact is that the Judge did permit Ms Windsor to ask Mr Moussoulides questions on the three matters raised, albeit while not missing a chance for some further criticism:
"Yes, well the parlous state of affairs Ms Windsor is entirely of your client's own making. The disposal of a number of solicitors throughout in my view speaks for itself and the preparation of his statement, again of his own making. However, I will allow you leave to adduce these matters but I shall case manage it and again, and this is going to cause the trial to be longer than it should be, and again it will be resounding costs [sic] whatever the outcome"."
- I think this episode does suggest that the Judge was in a frame of mind, having regard to the seemingly rather chaotic nature of the Appellant's case, to adopt a rather awkward attitude to anything new put forward on its behalf: she was rather too quick to assume that this was further side-stepping of the Rules and/or that yet further chaos would ensue. Nevertheless, I do not consider that her reluctance gave rise to unfairness, given that she relented; nor that such reluctance displays more than the crotchetiness which I have remarked on before. In my judgment, it does not betray or suggest bias; and I must bear in mind that the state of disorganisation in the witness statement and the exhibits would have exasperated many a fair-minded judge.
- In the circumstances, I have concluded that the Appellant was not prevented from, or unfairly prejudiced in, putting its case in this respect, and I consider that, in the circumstances as previously rehearsed, the Judge's comments in this regard were not sufficiently suggestive of a real possibility of bias, even if rather intemperate.
The Judge's unsympathetic treatment of Mr Moussoulides
- The next raft of complaints relates to the way the Judge treated Mr Moussoulides personally in the witness-box. The Appellant contends that the Judge, having been notably accommodating to Mr Lazarus when he was giving his evidence, "extended few of the same courtesies to Mr Moussoulides" even though he too is elderly (being in his 70s), and (it seems) may appear to be if anything physically frailer and in less good health.
- More particularly, the Appellant contended that the Judge was unnecessarily awkward about affording breaks, over-critical of his sometimes protracted efforts to locate documents, and over-briskly dismissive of evidence of his health difficulties and especially his apparently poor eyesight.
- On the basis of the transcripts and the oral recordings, I consider that the Judge would have appeared to be personally more sympathetic to Mr Lazarus than to Mr Moussoulides. Further, there are signs that the Judge' irritation with the gaps in the Appellant's case, and the signs of its hurried preparation, sometimes got the better of her and rebounded against Mr Moussoulides.
- The Judge made clear that what she called a "parlous state of affairs" was of his own making, exacerbated by the fact that by the time of the trial he had gone through eight or nine firms of solicitors. She appears to have formed the view very early on that he was to be given little indulgence, on the ground that if he was given an inch he would take a mile. Whilst she was prepared to give him breaks when required, and (for example) did her best to provide better lighting for him, the Judge seems to me from the transcripts to have transmitted the impression of feeling little sympathy for him in a state of affairs that she regarded as of his own making. I think that on some occasions the Judge appeared critical and dismissive during his giving of evidence and cross-examination: that was, with all respect, inappropriate, even if, even in the case of a more sanguine judge, occasionally almost impossible in human terms to avoid.
- Even so, I do not think that the fair-minded and informed observer would have thought that the Judge's attitude and lack of sympathy suggested a real possibility of bias, in the sense of being disposed to conduct and determine the case by reference to inappropriate considerations. I consider such an observer would have recognised that although entitled to a fair hearing Mr Moussoulides was not entitled to be treated with kid gloves, that the Judge was not necessarily wrong in thinking that he was seeking to rely on infirmity to excuse and make good the gaps in his case resulting from its hurried preparation, and that though she was being tough, and indeed rather unsympathetic, she was not being unfair.
- I should add that the Judge was not insensible or indifferent to Mr Moussoulides's needs in consequence of his health and poor eyesight: she encouraged the provision of assistance to him in navigating the bundles; she arranged extra lighting; and though she sometimes made the point that it was not he alone who was getting tired, she afforded him appropriate breaks.
Interruptions in the course of the cross-examination of Mr Moussoulides
- The next series of complaints concerns the Judge's approach in the course of the cross-examination of Mr Moussoulides and in particular, (a) the Judge's readiness to permit Ms Shea to cross-examine freely without any rules being imposed and with very few interruptions in respect of the questioning, in marked contrast to her attitude in each of Ms Windsor's cross-examinations; (b) the frequency of the Judge's interruptions of Mr Moussoulides's answers, and the latitude she gave Ms Shea in interrupting him also.
Latitude afforded to Ms Shea
- The Appellant contends that the Judge permitted Ms Shea a leeway in cross-examination that she conspicuously denied to Ms Windsor. I have already addressed the fact that the Judge did frequently intervene in the course of cross-examination by Ms Windsor: now my focus is on whether the Judge evinced a different standard or attitude in the course of the cross-examinations conducted on behalf of the Respondent by Ms Shea.
- Comparisons of that nature are not easy. Ms Shea was in the comfortable position of having a well-prepared case and sufficient time in which to master it: she had no need to strain for ways of plugging evidential gaps, nor was she in difficulty in identifying the parts of the evidence she needed to show the witness.
- I sense, however, from the transcripts and the recordings of them that the Judge was more overtly sympathetic and accommodating to Ms Shea, and perhaps somewhat chiding and harsh with Ms Windsor. The bald statistics also reveal a difference: while the Judge's interventions and comments comprised 56% of the total comments and questions made by the Judge and Ms Windsor during Mr Lazarus' cross-examination, the equivalent percentage for Mr Moussoulides was 16%.
- But Ms Shea was certainly not immune from active case management by the Judge: the Judge also controlled her cross-examination quite tightly during its first part (for example, interjecting: "Where is this all going, Counsel?") and frequently during its second. Thus, for example:
(1) Ms Shea's cross-examination was frequently moved on: "Move on, next question please"; "Can we move on please"; "Is it a yes or a no?" (the answer: "Yes, I knew"); "Thank you, can we move on?" "Is this your last topic?"; "How much more have we got?" (twice); "Have you got much more of this?"; "Can we move on?"; "Can we move on?" (again); "Are we nearly finished?"; and "can we move on?". On several of those occasions, the Judge interrupted an answer from the witness; but on those occasions it is fair to say that the witness seemed to be answering a question somewhat irrelevantly and expansively.
(2) Ms Shea was not immune from correction: "Wait a moment. In fairness to the witness it actually says…".
(3) Ms Shea was asked to wait when the witness answered a question: "Wait a moment, please".
(4) Ms Shea was snapped at, for example as to the location of documents:
"MS SHEA: Yes. It's 1376
JUDGE BAUCHER: 1376, in the same bundle?
Q. Yes. This is –
JUDGE BAUCHER: No, it is not in the same bundle then if it is 1376?".
- Thus, the Judge was interventionist and strict with Ms Shea also, exhibiting the trait I have previously noted of wishing to be seen to be in tight control of her court and the management of the proceedings.
- Whilst I have noted and taken into account that Ms Shea was interrupted and reprimanded less than was Ms Windsor, I do not consider that the Appellant's overarching complaint that Ms Shea was allowed undue latitude is well-founded. I do not think that any of this rendered the trial process unfair; nor do I accept that the differences in the treatment of the two Counsel would suggest bias.
Interruptions of Mr Moussoulides
- The Appellant also contends that (a) the Judge's interruptions during the course of the cross-examination of Mr Moussoulides were excessive and disruptive, such as to undermine and impede him in conveying his case and (b) it is clear from the transcripts that Mr Moussoulides was interrupted, at times mid-answer, by both Ms Shea and the Judge. It is also evident that, in this context the Judge did offer some rather stern, and at times sharp, criticism of Mr Moussoulides's evidence whilst it was being given.
- However, it is also clear, as Ms Shea submitted, that Mr Moussoulides, in answering questions, did have a tendency to drift off-point, even in respect of simple questions, and that his evidence was often rather contrary. His evidence clearly did need some careful management. This is the context for the Judge's approach and I think would have been evident to any informed observer.
- The question then is first, whether that management by the Judge either in fact prevented Mr Moussoulides from giving evidence relevant to the Appellant's case so as to constitute unfairness, or would have led the fair-minded and informed observer to conclude that there was a real possibility that the Judge was biased against Mr Moussoulides's evidence, i.e. that she took against the evidence for reasons unconnected to the legal or factual matrix of the case.
- As to the suggestion that, in effect, Mr Moussoulides was impeded or thrown off course in giving his evidence, I consider that the likely reality is that, however he had been treated, Mr Moussoulides's propensity to drift off point and descend into rather amorphous or generic assertion would have prevailed. It may be that the Judge sometimes evinced a lack of sympathy and was, on occasion, abrupt. But, as previously indicated, I do not think a witness is entitled to expect special dispensation from the need to focus on the question on account of their age, especially given that he was, after all, the only witness offered by the Appellant and the person charged with the running of its affairs and this litigation. It needs also to be remembered that Mr Moussoulides had the opportunity to put forward his case in his witness statement. In short, I do not accept that the Judge's interruptions (I deal later with her interventions in his cross-examination) gave rise to procedural unfairness.
- As to the other limb of complaint, the suggestion of the appearance of bias, I do think that it can be inferred from the transcripts that the Judge was not only forming views as to Mr Moussoulides' conduct and truthfulness as his cross-examination progressed (which is neither abnormal or inappropriate), but also in the substance, form and tone of her interventions, conveying these views (which is unusual and usually unwise).
- However, whilst sphinx-like inscrutability, most especially during the process of eliciting and testing the evidence, may be the wisest attitude and the safest objective, it is hardly unknown for judges to betray their views and even scepticism; and it is a common place for Counsel, clients and other observers to read the judge as being against them, without any suggestion in consequence of the appearance of bias, and sometimes quite erroneously in the event.
- In this case, in my view, none of the Judge's comments either suggested or would have given the appearance that she had formed a final view either prematurely or by reference to extraneous and inadmissible material or considerations such as to render the process of giving evidence redundant and the process of trial unfair. I do not think that the comments were such as to have led the observer to conclude that there was a real possibility that the Judge was biased against Mr Moussoulides, such that she could or would not proceed fairly to determine the Appellant's case.
Did the Judge join in cross-examination and 'descend into the arena'?
- The other part of the Appellant's case on this point is the contention that the Judge in effect joined in Ms Shea's cross-examination of Mr Moussoulides in a way suggesting that she had "descended into the arena". The Appellant gave two particular examples to seek to illustrate and make good this contention.
- The first is the following exchange:
"Q. Turning now to the, what we're calling the flood claim or the flood litigation, if you could open divide-
JUDGE BAUCHER: There is…
Q. I beg your pardon?
JUDGE BAUCHER: There is a further reference that you might want to put to the defendant on 1267, seems to be a specific date. [Inaudible] interchange, there is a further reference to 27 June."[1]
- Another example which the Appellant identified is that at one other point the Judge referred Ms Shea to a paragraph of a witness statement which Ms Shea does not appear to have been minded to ask Mr Moussoulides questions about but was encouraged to do so by the Judge, "given the evidence yesterday".
- Neither example, to my mind, comes close to disclosing or giving rise to the risks identified in Yuill (see paragraphs [18] and [20] above). The questions asked were such as might have been deferred until after the conclusion of cross-examination, but which were entirely reasonable. I do not consider that the reasonable observer, noting the very limited quantum and nature of these questions in their context, would come to a conclusion that such interventions improperly interfered with Mr Moussoulides' evidence, or gave rise to a real possibility of any bias.
The Judge's handling of the dispute as to evidence relating to planning applications
- I have mentioned in paragraphs [152] and [155] above an issue which arose with respect to a schedule of planning applications handed up to Mr Moussoulides with the Judge's permission but before Ms Windsor had considered the details. In particular, the Appellant contended that the Judge was at fault and unfair in permitting Ms Shea to proceed without first giving Ms Windsor sufficient time to check the factual basis and accuracy of the schedule, and further at fault and unfair in appearing to harry Ms Windsor into agreeing the document in such circumstances on the basis that such a pause in the cross-examination would be inappropriate and not acceptable and a waste of time.
- In summary, the Respondent submitted in response that: (1) the Judge was correct that Mr Moussoulides needed to be cross-examined on the documents in the schedule, and that it was necessary to conduct this cross-examination prior to Ms Windsor taking instructions from him; (2) the issue that Ms Windsor had not had time to read the schedule was addressed by Ms Shea talking through it, "page by page"; (3) in the event, no objection was taken as to the schedule or its contents; and (4) in the event, once it had been clarified that the Judge was interested in whether the document purporting to show planning permission, alleged by Mr Moussoulides to exist, was in the bundles, Ms Windsor was given time to take instructions on this more discrete and relevant point.
- I admit to having felt instinctive unease in this context: it did, initially at least, appear to me that the Judge might have sacrificed fairness for speed, or appeared to do so, and evinced a flexibility towards Ms Shea denied to Ms Windsor. I have taken particular care to scrutinise the transcripts in this regard.
- I have been persuaded by the Respondent's argument as above summarised that no unfairness resulted in the event; and that although the informed observer might have been confirmed in the perception that Ms Windsor was being given a rough ride, that fell short of any appearance of a real possibility of bias.
Alleged hostility of Judge to Ms Windsor during re-examination of Mr Moussoulides
- The complaints arising from this section of the trial essentially relate to what the Appellant contended were "hostile" and "sustained" interruptions by the Judge, said to have caused her to refuse to hear evidence on certain topics, to cut off certain lines of re-examination and to create an appearance of bias against the Appellant.
- The Appellant cited particularly the following "incidents":
(1) The Judge leapt upon Ms Windsor's very first question to express the hope that she would not lead the witness, even though that question was probably not a leading question at all and, if it was, was simply eliciting evidence on a background issue as to Mr Moussoulides's health;
(2) The Judge cut off questioning intended to elicit an answer to demonstrate that what was alleged to be a serious breach of covenant in putting up a particular hotel sign was not the fault of the Appellant but of a previous tenant: the following extract captures the flavour:
"Q. Which part of that [hotel] sign did your company put up?
A. Could you repeat a bit louder your question, please?
Q. Which parts of this sign did you and your company put up?
A. This was outside the porch of the hotel and we have changed the Perspex from both sides. Now it says the name of the hotel on the Perspex and we put back the sign.
Q. So which parts were there before you had any involvement-?
JUDGE BAUCHER: What is the relevance of this in terms of whether you[r] client is in breach or not?
MS WINDSOR: Well, Your Honour, I do submit it is relevant background.
JUDGE BAUCHER: I am not interested in background when it is five to four and I have got the expert evidence waiting to be heard. I want relevant probative re-examination.
MS WINDSOR: Well, Your Honour, the allegation is that this is a significant breach of covenant.
JUDGE BAUCHER: Yes, so it is not relevant whether it was there before or not, is it? It is relevant that they were in breach of it. If you have got evidence put before this court that the prior tenants have been written to about it, where is it? Tell me the page number and I will look at it when I do my judgment.
MS WINDSOR: Well, my submission is that-
JUDGE BAUCHER: If you want to make a submission, save it for submissions. What I want from your client is anything that you need to re-examine him about which is necessary for the purposes of re-examination and not background."
(3) The Appellant complains that the Judge "repeatedly interrupt[ed] re-examination in a hostile manner, suggesting that the figures being put forward by D's counsel could not be reconciled ("How am I supposed to reconcile those figures?") but subsequently had to concede that she had misread them".
(4) The Appellant complains that the Judge "chide[d]" Mr Moussoulides for reading out a document, when (the Respondent notes) he had been asked not to do so earlier by Ms Windsor.
(5) The Appellant complains about a section of the re-examination recorded in six pages of the transcript due to "sustained interruption" by the Judge, including further "accusations of leading [the] witness" and a refusal to hear evidence in relation to a compliments slip.
- I agree that each of the Judge's interventions are, in themselves, capable of being justified:
(1) The warning not to lead was (just) justified by the form of the question;
(2) The Judge was right that the line of questioning was unnecessary: Mr Moussoulides had already "given evidence that the signs were already up when he took the lease. It was in any event irrelevant to the question of whether or not there had been a breach of covenant".[2] Further, Ms Shea had also already stated in Court that she accepted that he had not put the signs up;
(3) The tetchy intervention about the figures was misplaced and based on a misunderstanding or error on the part of the Judge: but she was seeking elucidation, and admitted her mistake quickly;
(4) Mr Moussoulides persisted in reading out documents even though warned not to do so by his Counsel: time was short and the Judge's remonstration is understandable;
(5) Although rather hectoring I do not consider the Judge's questions to be unjustifiable.
- I do not accept that these interventions in re-examination were such as might reasonably be expected to blow Counsel off course or deter necessary and permissible re-examination, and thus give rise to unfairness.
- I have considered carefully the suggestion that Ms Windsor possibly was deterred from the following topics:
(1) Eliciting relevant evidence as to Mr Moussoulides's state of health. I do not think she was: in the event, she elicited answers on vision, hearing and age, before moving, of her own accord, on to a different topic. It is not clear that there was further evidence to elicit or, as the Respondent submits, what the real relevance of this evidence was in any event, absent any applications being made in this respect (other than, as dealt with above, the request to allow Mr Moussoulides sufficient time to move between documents).
(2) Continuing her re-examination on the hotel sign issue. However, this line of questioning was, as the Respondent submits, repetitive of previous evidence, not particularly relevant to the issues to be tried, and related to a matter which was not in dispute between the parties;
(3) Questioning Mr Moussoulides about certain expenditure on scaffolding, but with Ms Windsor apparently conceding that this questioning did not arise from his cross-examination;
(4) Questioning Mr Moussoulides as to whether he had allowed inspections that were or were not "required by the terms of the lease", as she agreed with the Judge that this was a "matter for submissions"; and
(5) Asking a question based on a compliment slip written by someone else: that was not really a matter for this witness.
- Overall, in my view, these interventions were substantively minor, of a case management nature, and did not, in my view, prevent the Appellant from putting forward its case in any tangible way.
- As such, I conclude that the Judge's interventions in Mr Moussoulides's re-examination did not blow Ms Windsor off course.
- Similarly as to the contention that such interventions gave rise to an appearance of bias, it seems to me that the informed observer would likely have taken the view that the witness was not being impeded but simply had little more to offer; and the more sophisticated observer might also have thought to herself that a case is seldom made or rescued in re-examination. I do not consider that the informed observer would have considered that unreasonable impediments were being placed in Ms Windsor's way or that she was being treated in a manner suggestive of animosity or a real possibility of apparent bias, even if (as I have said more than once) her predicament was an uncomfortable one, not much to be envied.
The 2016 Employment Tribunal decision
- The Appellant made a number of specific complaints in relation to the Judge's handling of an issue as to the use made by the Respondents of an Employment Tribunal Decision in 2016 which related to proceedings brought by a former employee against the Appellant claiming wrongful and unfair dismissal and racial discrimination. The resulting judgment upheld the claims of wrongful and unfair dismissal and rejected that of discrimination. To quote Ms Shea's skeleton argument for the trial it held that the Appellant had "treated its employees badly" and "very poorly". The decision was also thus described in (and appears to have been exhibited to) Mr Lazarus' witness statement:
"61. …[An employee] brought a claim against the Defendant for unlawful deductions from wages, for holiday pay, for a statement of employment particulars, for an itemised pay statement, for wrongful and unfair dismissal, and for discrimination on the grounds of race. Before an employment tribunal, and on appeal… all of the abovementioned complaints were upheld… with the exception of the last one (race discrimination).
62. I was particularly disturbed to see that the tribunal made findings that (a) the Defendant could not, or did not, produce records of accounts; (b) there was a suggestion that there were poor records kept of pest control measures…; and (c) that it was accepted by a majority of the Tribunal that the Defendant paid some workers around £200 for working 48 hours but did not keep records of how long people had worked.
63. I have seen a copy of the employment appeal tribunal's decision… Although [the employee's] appeal on that point [(race discrimination)] was unsuccessful, the reason given was very disturbing… it was observed that 'In the employment tribunal's view, the [Claimant] [sic] was an exploitative employer and would have exploited any vulnerable employee in just the same way whatever the reason for that employee's vulnerability might have been…"
- This issue generated a considerable amount of heat and dissatisfaction. That is not surprising. The decision, it is now accepted (including by the Judge, expressly so in her judgment), was inadmissible under the principles set out in Hollington v Hewthorn & Co Ltd [1943] KB 587 and Secretary of State for Trade and Industry v Bairstow [2003] 3 WLR 841. Yet before inadmissibility was established, the decision was deployed by the Respondent as going both to Mr Moussoulides's character and his credibility. Rather inevitably, the Appellant has concluded in retrospect that the Judge was materially influenced by it and was not able to rid herself of that view of Mr Moussoulides, partly at least explaining what the Appellant considered was her antipathy to him in the witness box. The Appellant's concerns were exacerbated by the Judge's initial reaction to the point (as to inadmissibility) when (albeit belatedly) made by Ms Windsor: the Judge criticised her for not taking the point earlier, but did not criticise the Respondent for adducing it and relying on it in the first place, and never acknowledged any error on her own part in failing to question the relevance and admissibility of the decision, though the cases cited above are very well known.
- In my view, this was an error by the Judge; and her criticism of Counsel for the Appellant in raising the point without a word against Ms Shea for relying on it is unsettling and unsatisfactory. However, the question is whether the error, or the Judge's attitude once it was established to be such, demonstrates or gives rise to the appearance of bias, or upset the fairness of the trial process.
- This too has troubled me. But I have concluded that, ultimately, it did not skew the Judge's impression of Mr Moussoulides so as to affect her judgment; and though for a time the error may have caused the Judge to form a dim view of Mr Moussoulides, error it was, rather than bias, or any appearance of it. In my assessment, the hypothetical reasonable and informed observer would have assumed that the Judge was entitled to draw conclusions from the judgment rather than thinking her biased in doing so; and when the error was revealed would have wished to be satisfied that she had accepted it, and taken sufficient pains to ensure that she was no longer influenced by it.
- In this context, and with particular reference to the issue of unfairness, the judgment itself seems to me to demonstrate that she did do just that. Judges are frequently asked to put certain matters aside, and there is nothing to suggest that the Judge did not, in this case, do so.
The Judge's alleged hostility towards the Appellant's expert, Mr Grove
- The Appellant contended that the overall impression of hostility which, it submits, the observer would have gained following the interactions between Ms Windsor and the Judge would have been increased by similar hostility, which it described as "scathing", towards the Appellant's expert witness, Mr Grove.
- The Appellant identified a number of incidents relating to Mr Grove's cross-examination and the expert evidence in general during which it criticises the Judge for how she dealt with: (i) the delayed production of a letter of instruction, at which point it was alleged that she was unnecessarily rude both to Ms Windsor and Mr Grove and again made inappropriate threats in relation to costs; (ii) Mr Grove being asked by Ms Shea to comment on an inference from and the meaning of a letter, without any sign of criticism from the Judge though Ms Windsor had earlier been criticised for asking a similar question in relation to the meaning of a contractual clause; (iii) the Judge's criticism of Ms Windsor's submission that some allowance should be made for the fact that Mr Grove had had to prepare his report unsupported by solicitors, it being suggested that the Judge misunderstood the usual process by which expert reports were prepared, and (iv) the Judge's failure to criticise the Respondent following a concession in relation to the costs of the alterations and certain comments surrounding this (including what was presumed to be a joke said to suggest that Mr Grove's ability to comply with directions given by the Judge would depend on whether there were any football matches on that evening).
- It is necessary, however, to place these comments in their appropriate context. In essence it does appear, as found by the Judge, that Mr Grove had, at best, limited awareness of his duties as an expert. Most significantly I think, and by way of example, he had (as explained previously) unilaterally sent to the Court prior to the trial a document entitled "Schedule of Points Agreed and Not Agreed". This document had only previously been sent by the Respondent's expert as a work in progress, and had not been agreed prior to Mr Grove sending it to the Court. As it seems to me, the Judge's deprecation of this betrays no unfairness. There must be room made for such criticism: as it seems to me, it will be very seldom that well-founded criticism of an obvious breach of the rules will render a trial unfair.
- Whilst in this instance, as indeed in others, the Judge's tone was at times regrettable, I do not think any of the particular incidents raised by the Appellant would give rise to an observer perceiving there to be a risk of bias. Where the Judge was required to make decisions or give directions I think that these decisions were in any event fair, and certainly very well within the latitude allowed to her in managing her own court. To the extent that her comments individually or as a whole were rude that is unfortunate, but it must also be taken into account that Mr Grove's performance was far short of exemplary. In context, though the observer might again have thought the Judge crotchety and acerbic, I do not think that her tone and manner, even if it might have on occasion have appeared rude, would led to a perception of bias.
- More broadly, the Appellant also submits that the Judge's treatment of Mr Grove was discriminatory and was and would have appeared to be unfair, especially when compared to the Judge's treatment of Mr David, the Respondent's expert. It was submitted that this was in particular, for instance, evidenced by the Judge's comment in relation to Mr David that: "were I to make adverse findings about an expert it can have serious consequences for them". In this regard, the Judge did in fact proceed to make adverse findings about Mr Grove in the Judgment having received further submissions which she requested from both Counsel on the treatment of the expert evidence.
- However, in my view, and in the circumstances, she did not appear to do this because she took against Mr Grove for some reason of her own unconnected with the case: she did so because of the views she formed as to his evidence and the way it had been prepared. It was open for her to reach such conclusions, and having done so it was relevant for her, and not unfair or suggestive of anterior unfairness, to state them.
- I do not agree that those conclusions revealed or suggested apparent bias. That is so even if she was, and it appeared that she was, forming them during the trial itself: impartiality does not require the judge to forsake the formation and sometimes gradual hardening of a provisional view until after closing submissions.
Overall did the Judge undermine the Appellant's counsel in cross-examination so as to impede its case or give the appearance of bias?
- The Appellant contends that, looking at the evidential part of the trial as a whole, the Judge was unnecessarily restrictive of Ms Windsor in the course of her cross-examination and re-examination of witnesses; and that she was on various occasions rude to and disparaging of her. It is submitted that this was not only personally unsettling, but more importantly, materially impeded the proper development of the Appellant's case and testing of the Respondent's case. It is said also that the Judge's conduct undermined Ms Windsor in the eyes of witnesses, unfairly and to the detriment of her client, and so as also to give rise to the appearance of bias on the Judge's part.
- Subject to the warning in the document that "the full extent of the Judge's interference in the presentation of the [Appellant's] case can only be understood by reading the relevant cross-examinations and re-examinations as a whole", the 12-page list of examples of interventions in Ms Windsor's cross-examination and re-examination said to show that the Judge imposed unfair restrictions on Ms Windsor was also marked up in bold with a view to showing examples where, more often than not, their manner or tone was "rude and intimidatory".
- I have considered the transcripts both written and audio, with special regard to the particular examples cited, but also in the round. I should first say, with regret, that I found some of the examples raised to me by the Appellant of comments made by the Judge to Ms Windsor to be, at the least, abrupt and regrettable on the basis of the transcript alone; and the audio recordings conveying the Judge's manner and tone of voice confirmed and on occasion exacerbated my reaction. At times, the Judge might have been perceived to be intent on giving Ms Winsor a stern lecture on the do's and don'ts of cross-examination. Her repeated references in the course of the proceedings to a potential sanction in costs if the state or conduct of the Appellant's case occasioned delay was oppressive and, in my view, inappropriate and intimidating. Such conduct made worse an already difficult position for Ms Windsor for no judicial benefit in the end. The Judge was plainly a difficult tribunal before which to advance an ill-prepared and disorganised case. Ms Windsor's position was unenviable and invidious. Once again, I repeat that I have considerable sympathy for her in this.
- However, the key issue here is whether such interjections, which the Appellant described as "sustained criticisms and interruptions", were (a) such as to unsettle or skew the process so as to prejudice the exploration of the evidence or (b) such as to give rise to the reasonable perception and/or give rise to a reasonably based perception of a real risk of bias.
- I have not found either judgement straightforward. In my assessment, the Judge was excessively interventionist, was disparaging and did unsettle Counsel. On at least one occasion, I fear that the Judge may have allowed herself to become more involved in correcting Counsel and lecturing her about court-craft than in the sober and detached adjudication of the case. Disparaging Counsel is not only unnecessary and discourteous: it may also build in a witness a feeling of advantage, and of being able to treat Counsel (and so ultimately the Court) with less rigour and possibly less candour. In other words, it may affect and impede the presentation and testing of evidence, which is the main focus and primary objective of a witness trial.
- Against that, however, the fact remains that in almost every case, the Judge's interventions were in strict terms justified. Ms Windsor's examinations were not always precisely focused. She should have had, but did not have, at her finger tips the bundle references to enable the witness to focus on the question, sometimes because the bundles were disorganised, sometimes because deficient. She was sometimes reduced to positing possibilities for which there was little, if any, basis in the evidence. Such was the disorganised state of the evidence, and the amorphous and unsatisfactory nature of Mr Moussoulides's witness statement, that she was on occasion unable to be sure what was and what was not in her case. There are, regrettably, clear signs that she had not had time to identify with sufficient precision what evidence was really necessary to put or elicit in order to establish her client's case, almost certainly because she and her solicitors were instructed far too late in a case to which no order had been brought.
- It is very difficult to assess with hindsight whether Ms Windsor's hesitancy and occasional retreats were the result of judicial intervention, or simply in consequence of her predicament in having to put forward a case which was not in order. It may be that a more sympathetic tribunal might have assisted her overcome the inherent difficulties. But, on the whole, I have concluded that, though difficult and unsympathetic, even sometimes disparaging, the Judge's interventions and criticisms of Counsel were not the real reason preventing the Appellant's cross-examinations developing momentum and cogency; they were not such as reasonably to prevent the sufficient exploration of the evidence or otherwise render the process unfair. In other words, in my judgment, the true source of difficulty was the state of the Appellant's case, not the trial process.
- Likewise, in my judgment, neither what the Judge said nor the way she said it would have reasonably given rise to the perception of a real possibility of bias, as distinct from the impression of a difficult and exacting judge with little or no real sympathy for the serious and obvious difficulties that Counsel faced.
Judge's intervention in oral closing submissions and especially her comments in that context as to Mr Moussoulides's credibility
- The Appellant also complains of a number of statements made by the Judge in the course of oral closing submissions, especially those concerning the credibility of Mr Moussoulides.
- In particular, the Appellant highlighted the following of the Judge's comments in that regard:
(1) Ms Windsor submitted that Mr Moussoulides' offer to give undertakings in exchange for a continuing tenancy was a factor relevant to the Judge's discretion. The Judge responded to this to say: "Yes. Well, hang on, the claimant would say… and forgive me for putting it so bluntly, 'Why would we accept the word of a liar?' But that is the claimant's position".
(2) Similarly, the Judge went on to say: "it is all very well promising undertakings and the difficulty is that the landlord may say, 'Well, I don't care what undertaking this individual's prepared to take…'. Because they have made it clear that they consider your client to be an out and out liar, not least in terms of the evidence that he has given before this court. They do not accept some of it and it is put quite starkly in Ms Shea's closing submissions".
- The Respondent submits in response to these points in summary that: (1) the Judge perfectly properly wished to know what the Appellant's response was to the Respondent's case in this regard, and to give Ms Windsor the opportunity to comment on this; and (2) the Judge was correct to summarise the Respondent's position in this way: the Respondent did consider Mr Moussoulides "to be an out and out liar".
- I do not think that either of these comments from the Judge were improper and I do not think there is any real merit in this complaint. The Judge was entitled to question Ms Windsor as to this point: it is not unusual to test a case with Counsel during legal submissions. The Judge in this particular instance was correctly, even if somewhat trenchantly, summarising the Respondent's position: they did consider and had depicted Mr Moussoulides to be an out and out liar. I think the Judge might and perhaps should have done more to make clear that she was not to be taken as adopting the Respondent's position; but that is a matter of subjective preference. I do not think an informed observer would have perceived the Judge to have been adopting the Respondent's case, as opposed to citing it, stressing its starkness and inviting response.
- More generally, I do not think that this comment, or similar interventions in the course of oral closing submissions, was improper; nor such as would give rise to a perception of the real possibility of bias.
- The Appellant also complained that there was a "notable contrast" between the Judge's interventions during Ms Windsor's submissions, when compared with her interventions during Ms Shea's. A review of the transcripts confirms such a contrast. The Respondent countered this on the basis that (i) the Judge had extensive written submissions from both parties by this stage; (ii) the Judge was appropriately testing the Appellant's case by raising her concerns with Ms Windsor during closing submissions; and (iii) the Appellant cannot complain that it was given this time and opportunity to address those concerns, even in circumstances where "the case was clear on the facts".
- I do not consider that the fact that the Judge intervened and questioned Ms Windsor more often and more closely than she did Ms Shea is significant or a matter of material complaint. It is a makeweight if anything: it might confirm unfairness or a perception of the possibility of bias, but it would not found such a conclusion.
- There is a clear distinction between, on the one hand, interventions in cross-examination and re-examination with respect to the evidence and on the other hand, intervention in counsel's closing submissions for the purpose of testing them: (and see per Jonathan Parker LJ at paragraph 145 in Southwark LBC v Kofi-Adu [2006] EWCA Civ 281).
- The Judge's role as to the evidence is to seek to ensure that admissible evidence is put forward, elicited and tested by the parties in accordance with the rules: the Judge is, as it were, the recipient and should be careful not to become involved in that process further than is necessary to ensure compliance with the rules.
- By contrast, closing submissions offer the appropriate opportunity not only for Counsel to put forward their case on the evidence as it has emerged, but for Counsel to be tested by the Judge to enable him or her fully to understand the case as presented and to identify any weaknesses in it as a preliminary to writing a judgment. In the latter context, intervention is both appropriate and common-place: and fairly critical and dogged questioning is neither unusual nor improper. The provisional view of the Judge may now be apparent, or even expressed: but that is not of itself objectionable, the trial, having in effect, entered the adjudication stage. Of course, even at such a stage a judge may exhibit or give the appearance of some pre-existing bias: but a provisional view before judgment is to be distinguished from that. Nor, without more (and the additional feature would have to be fairly striking), is the fact that a judge is markedly more interventionist in one side's case than the other any indication of bias.
- In the present case, I do not think that the Judge's interventions in the course of Ms Windsor's closing submissions were indicative of unfairness in the conduct of the trial; nor do I think that they might reasonably give rise to a perception of a real possibility of bias. That includes some jokes which the Judge attempted (I would say unwisely since a joke may be recognised as such by one side but strike the other as a wounding barb), and which the Appellant has taken much amiss.
- Particularly in fraught circumstances, in which by now it was fairly clear that the hearing had gone badly for the Appellant, some of these attempts at levity were misplaced and too pointed to be accepted as humorous by their target, and might fuel an impression on the part of the party against which they might appear to be aimed that they were outside and the other inside a circle. But such matters are not of such substance as to indicate unfairness; and in my assessment a reasonably informed observer would probably have thought the jokes odd and misplaced, but would not have perceived them to suggest the possibility of bias.
Conclusion
- This Trial was plainly an uncomfortable one for the Appellant and its Counsel. Its case was disorganised, almost certainly in consequence of frequent (eight) changes of solicitor and the fact that Mr Moussoulides was left without legal assistance at crucial junctures. Ms Windsor was instructed very late; so too were her solicitors: far too late to be able either to remedy the defects or coral the evidence and references to it necessary to conduct an incisive cross-examination. It was a testing experience: and I sympathise with Counsel in her predicament. Nothing I have said is intended to suggest that she could and should have done more by way of preparation: I have seen nothing to suggest that the somewhat amorphous, if not chaotic, state of the Appellant's case below was her fault. On the contrary, and as the Judge put it towards the very end of the Trial:
"I do understand that Ms Windsor was placed in what I could only describe as an invidious position but she has done her very level best for her client and I understand that".
- It was not, however, an easy trial for the Judge either. Echoing the words of Black LJ in Re G (at [53]) I have, in undertaking the requisite detailed review, with the benefit of hindsight, of a tortuous trial, been "deeply conscious of the fact that the one person from whom this court has not heard is the judge, who would no doubt have had much that she could valuably have contributed to the evaluation of the process."
- Also like Black LJ, I have sought to make allowances for this, for the pressures of trial from which a review in hindsight is free, and for the more general pressures of a long list of cases and time-consuming administration to deal with; and I have thought long and hard before expressing criticism of the Judge in her difficult task, as with regret I have sometimes felt it right to do. I have been the more hesitant given that whereas in Re G a three-judge Court of Appeal sat in judgment, in this case I am but a single judge called on to assess the conduct of another. I have deliberated carefully in expressing unease about her tone, and the view that the interventionist way she conducted the trial was occasionally at least counter-productive and apt to open up for the unsuccessful party resort to an argument that it had been unfairly treated and adjudicated, whereas in truth it was the deficiencies in its preparation which were the real source of the problems. I appreciate that my feeling that a difficult trial could and should have been managed with more regard to the objective of assisting each party to advance its best case is ultimately subjective.
- In the round, and notwithstanding the reservations and concerns I have felt it necessary to express, I have concluded that, having regard to the latitude that must be afforded to a judge at first instance in order to allow them to manage their case, the shapeless form of the Appellant's case as presented to her and the active judicial management it invited, and the robustness and persistence required and expected of Counsel, the Judge's conduct of the trial was not such as to render the process unfair. Nor was it such as would have led a fair-minded and informed observer, having considered the relevant facts and circumstances, to conclude that there was a real possibility of bias.
- Whilst, to quote Black LJ in Re G once more, "a careful and cogently written judgment cannot redeem a hearing" which is unfairly conducted, such a judgment can provide reassurance and confirmation of an overall view, after consideration of the transcript of proceedings, that the Judge did conduct the trial with care and cogency, and that her irritation and exasperation, and her attempts to bring order by interventionist and robust case-management, did not cross the line into unfairness or the appearance of bias.
- I dismiss the appeal accordingly. Any consequential matters can be addressed when this judgment is formally handed down.
- Finally, I would add my thanks for the assistance given to me by Counsel and their respective teams, exemplified by the detailed Schedule of "Alleged Incidents" and List of Interventions with comments by each party provided to me to guide me through the voluminous and dense material, and the care taken to ensure that I was afforded the means of listening to the transcript viva voce (as the parties expressly asked me to do). The material to be considered has been extensive: but I would apologise again for my delay in providing this judgment, which has been extended by reasons explained to the parties in correspondence which it is unnecessary to record or revisit.
