Barnes v Tilbrooks Solicitors & Anor

A judge should hear a listed matter unless there is a good reason for recusal. The governing question is whether a fair-minded and informed observer, having considered all the known facts, would conclude that there was a real possibility of bias. A party’s dissatisfaction with reasoned case-management or interlocutory decisions does not ordinarily satisfy that test.

An application to reinstate a dismissed application for permission to appeal requires both a good reason for the earlier non-attendance and a realistic prospect that reinstatement would lead to a successful appeal. A declaration of incompatibility cannot be made on the basis that the Human Rights Act 1998 omits a Convention right which the Act does not confer.

Peter Barnes made three applications to reinstate applications for permission to appeal which Clarke LJ had dismissed on 20 November 2001. Two applications concerned orders made in proceedings brought against Tilbrooks Solicitors and Sebastian Prentis. The third concerned an order dismissing an application to commit a solicitor for contempt in proceedings brought by Woolwich plc.

Barnes also applied for Lord Justice Chadwick to recuse himself, sought a declaration concerning the omission of Article 13 of the European Convention on Human Rights from the Schedule to the Human Rights Act 1998, and sought an adjournment and other ancillary relief. The central issues were whether recusal or reinstatement was justified and whether any proposed appeals had a realistic prospect of success.

1. Recusal. The application for recusal was dismissed. A judge has a duty to hear the matter listed before him unless there is good reason not to do so. The applicable test, identified by reference to McGill v Porter [2001] UK HL paras (95-105), was whether a fair-minded and informed observer, taking account of all known facts, would consider that there was a real possibility of bias. The judge’s adverse and reasoned decisions, without more, did not meet that test.
2. Human rights declaration. The application for a declaration of incompatibility was dismissed. The statutory power concerns incompatibility between an enactment and rights given by the Human Rights Act 1998. The Act could not be incompatible with rights which it itself conferred, or with a Convention right which it did not incorporate. Article 13 was omitted from the Schedule, so an act which might contravene Article 13 did not, for that reason alone, contravene the Act.
3. Reinstatement. The court assumed that Barnes had a good reason for not attending before Clarke LJ, but held that reinstatement would serve no useful purpose unless the proposed appeals had a realistic prospect of success. The applications concerning the failure to serve particulars of claim were therefore dismissed. The statutory test under section 55(1) of the Access to Justice Act 1999 applied to one application, requiring an important point of principle or practice or another compelling reason. The ordinary realistic-prospect test applied to the other.
4. In the Woolwich proceedings, the court found no realistic prospect of successfully challenging the dismissal of the contempt application. Sending a letter to the Court office setting out reasons against permission to appeal was not, in itself, contempt, although it was preferable that the applicant should receive a copy. Leave to petition the House of Lords could not be granted. The rule in Lane v Esdaile prevented it.

• Court of Appeal (Civil Division): Clarke LJ dismissed the applications for permission to appeal on 20 November 2001. Lord Justice Chadwick refused reinstatement, refused permission to appeal, and dismissed all applications.
• Queen’s Bench Division: Gray J made orders on 6 August 2001 dismissing or striking out the relevant claims and refusing permission to appeal.
• Earlier proceedings: Jacob J dismissed the contempt application on 3 August 2001. Master Prebble had made an unless order on 27 March 2001 concerning service of particulars of claim.