O'Brien v Barnet County Court & Anor

An allegation of apparent or perceived bias requires a credible evidential foundation. A judge’s apparent responsiveness to advocacy, together with an innocuous preliminary question about the judge, does not establish bias. A party who chooses not to challenge evidence, give evidence or make submissions cannot later use the resulting judgment as evidence that bias caused the earlier decision not to participate. Judicial review is not a means of relitigating the underlying case or correcting alleged factual errors where the bias challenge itself is hopeless.

Challenger Group Holdings obtained judgment for damages in the Barnet County Court after a road traffic accident. Mr O’Brien took no effective part in the hearing because he believed District Judge Karet was biased. He later sought permission to apply for judicial review of the county court decision. Sullivan J refused permission on the renewed application on 26 April 2002. Mr O’Brien applied to the Court of Appeal for permission to appeal, alleging perceived bias and challenging aspects of the district judge’s factual reasoning.

1. Application refused. The Court of Appeal dismissed the application for permission to appeal. Sullivan J was plainly right to regard the judicial review application as hopeless.
2. Bias may be actual or perceived. However, a perception of bias must have a credible basis. The matters relied on were that counsel had asked the usher whether the judge was male or female and that the judge appeared to be unduly impressed by counsel’s advocacy. Those matters could not conceivably establish bias.
3. Mr O’Brien could not rely on the district judge’s subsequent judgment as evidence of bias that had caused him not to participate, because he had already decided not to fight the case before judgment was given. His complaints that the district judge misunderstood the facts or reached wrong factual conclusions went to the merits, not to bias.
4. A party cannot use judicial review to relitigate proceedings which he chose not to contest effectively. The county court judgment was therefore not displaced, and the formal order was: application for permission to appeal refused.

• Court of Appeal (Civil Division): Application for permission to appeal refused from the order of Sullivan J dated 26 April 2002.
• Administrative Court, Queen’s Bench Division: Renewed application for permission to apply for judicial review refused.
• Barnet County Court: District Judge Karet entered judgment for Challenger Group Holdings for £1,415 on 31 August 2001.