Taylor v Lawrence

An appellate court’s final judgment is ordinarily conclusive. The Court of Appeal nevertheless has a residual jurisdiction, implicit in its appellate function, to reopen a perfected determination in exceptional circumstances where this is necessary to avoid real injustice. The applicant must clearly show that a significant injustice probably occurred and that no effective alternative remedy exists. The court must also consider prejudice to others and whether the applicant caused the difficulty. Reopening requires written permission and is initially controlled on paper.

Apparent bias depends on whether all relevant circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. Ordinary social or professional contact between judges and lawyers, including an unrelated private retainer, does not usually meet that standard. Borderline relationships should be disclosed, and any disclosure must be full.

The Lawrences lost a county court boundary dispute tried by a deputy circuit judge. During the trial, the judge disclosed that the Taylors’ solicitors had previously prepared and retained his will. The Lawrences’ appeal, including an allegation of apparent bias, was dismissed by the Court of Appeal in [2001] EWCA Civ 119.

The Lawrences later discovered that the solicitors had not charged the judge for amending his and his wife’s wills immediately before judgment was delivered. They sought to reopen the concluded appeal and rely on that evidence. A five-member Court of Appeal considered whether it could reopen a final, perfected appellate judgment and, if so, whether the new evidence established apparent bias.

1. Disposition. The five-member court, giving a single judgment, unanimously granted permission to reopen the matter so that the jurisdictional ruling could be made and considered for any further appeal. It dismissed the reopened application on its merits.

2. Residual appellate jurisdiction. Finality is a fundamental principle of litigation, but it admits tightly controlled exceptions. Although the Court of Appeal derives its appellate jurisdiction from statute and has no originating jurisdiction, its appellate function carries the implicit procedural powers necessary to maintain its character as a court of justice. It therefore has a residual jurisdiction to reopen a final appeal in exceptional circumstances to avoid real injustice. The general statements limiting jurisdiction in Flower v Lloyd [1877] 6 ChD 297 and related authority had to be read subject to that qualification. The reasoning in Bremer Vulcan v South India Shipping [1981] AC 909 was expressly approved.

   The powers transferred by section 15(3) of the Supreme Court Act 1981, together with the county court’s power to order a rehearing, did not themselves create jurisdiction to reopen an appeal. They determined the available powers only after appellate jurisdiction had been established.

3. Conditions and procedure. Reopening requires clear proof that a significant injustice probably occurred and that no alternative effective remedy exists. The court must consider the effect on other persons and the extent to which the applicant caused the problem. Where an appeal to the House of Lords is theoretically available, reopening is appropriate only if the Court of Appeal is satisfied that leave would not realistically be granted.

   An applicant must seek written permission. The application is considered on paper and may proceed only if the court directs. There is no oral hearing unless directed, and strong control is required to protect those entitled to regard the litigation as concluded.

4. Apparent bias. Applying Magill v Porter and Weeks [2001] UKHL 67, the court must ascertain all circumstances bearing on the allegation and ask whether they would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. Such an observer understands the traditions and professional culture of the jurisdiction. Ordinary social and professional relationships between judges and lawyers do not normally create that possibility.

   A judge should disclose a relationship where a fair-minded and informed observer might regard it as indicating bias. Borderline cases should be disclosed. Once disclosure is made, it must be full, because partial disclosure may unnecessarily generate suspicion.

5. Application of the bias test. The judge’s unrelated private dealings with the solicitors, including the absence of a bill for modest work, could not cause an informed observer to find a real possibility of bias. There was no reason to reject the solicitors’ explanation and no evidence that the judge knew no charge would be made. The new evidence would not have justified permission to reopen under the prescribed procedure. The appeal was dismissed, the stay was removed, costs were summarily assessed at £16,000, and permission to appeal to the House of Lords was refused.

1. Court of Appeal: In Taylor v Lawrence [2002] EWCA Civ 90, the court held that it possessed a residual jurisdiction to reopen a final appeal. Permission to invoke that jurisdiction was granted, but the reopened application was dismissed. Permission to appeal to the House of Lords was refused.

2. Court of Appeal: In [2001] EWCA Civ 119, the court dismissed the Lawrences’ original appeal, including their allegation that the deputy circuit judge had displayed apparent bias.

3. Watford County Court: His Honour Peter Goldstone determined the boundary dispute against the Lawrences in November 1999.