Sengupta & Anor v Holmes & Ors

A judge’s earlier refusal of permission to appeal on the papers does not, without more, create a real possibility of apparent bias if permission is later granted and that judge sits on the substantive appeal. The question is whether a fair-minded and informed observer, having considered all the circumstances, would conclude that there was a real possibility of bias.

A refusal on the papers remains capable of reconsideration through the appellate process. The observer is taken to understand that oral argument and further reflection may change a judge’s preliminary view. Recusal may nevertheless be required where special circumstances objectively demonstrate prejudgment, such as a prior determination of disputed factual merits or intemperate language showing a closed mind.

Original complainants obtained judicial review before Ouseley J, who on 27 April 2001 quashed a decision of the Preliminary Proceedings Committee of the General Medical Council not to refer a complaint concerning Dr Sengupta to the Professional Conduct Committee. Dr Sengupta, an interested party in that claim, sought to appeal.

Laws LJ initially refused permission to appeal on the papers. A differently constituted court later granted permission. When the substantive appeal came before Laws, Jonathan Parker and Keene LJJ, Dr Sengupta applied for Laws LJ to recuse himself for apparent bias. The court adjourned that issue for submissions from an advocate to the court and the Lord Chancellor as intervener.

The central issue was whether a Lord Justice who has refused permission on the papers may sit on the substantive appeal after permission has subsequently been granted by another court.

Application refused unanimously. Laws LJ, with whom Jonathan Parker LJ agreed, held that his earlier refusal of permission did not require his recusal from the substantive appeal. Keene LJ agreed, giving additional reasons.

1. The applicable domestic test was whether, after ascertaining all relevant circumstances, a fair-minded and informed observer would conclude that there was a real possibility of tribunal bias. The test accords with the objective-impartiality requirement under article 6(1) of the European Convention on Human Rights.

2. The procedural change from a former indication that a judge was minded to refuse permission to the current refusal of permission on the papers was one of form, not substance. In either regime, the applicant could seek reconsideration at an oral hearing. A paper refusal was therefore potentially provisional in the practical sense relevant to apparent bias.

3. There is a material distinction between an extraneous interest or connection and alleged prejudgment. In the latter category, recusal depends on whether the judge’s earlier involvement objectively gives rise to a reasonable apprehension of a closed mind. It may do so where the judge has already resolved disputed factual merits, or has used language demonstrating an inability to reconsider the case fairly.

4. Those features were absent here. Laws LJ had not tried the case or resolved factual disputes. He had expressed no intemperate view. A fair-minded and informed observer would understand that oral advocacy, further reflection and discussion among appellate judges can properly cause a judge to change an earlier view. Such an observer would not infer that the judge would adhere to the paper refusal merely because he had made it.

5. Keene LJ added that the paper permission decision and the substantive appeal involved materially different decision-making processes. The availability and force of oral argument, together with the intermediate opportunity for renewal, meant that there was no real possibility that Laws LJ would approach the appeal with a closed mind.

The application for recusal was refused. The parties’ costs, including the GMC’s costs, were reserved to the court hearing the substantive appeal. The advocate to the court and the intervener were to bear their own costs.

• Court of Appeal (Civil Division): The court refused the interlocutory application that Laws LJ recuse himself from the substantive appeal: [2002] EWCA Civ 1104.
• Administrative Court: Ouseley J, on 27 April 2001, quashed the General Medical Council Preliminary Proceedings Committee’s decision not to refer the complaint to the Professional Conduct Committee. No citation for that decision is stated in the judgment.