Jones v DAS Legal Expenses Insurance Co. Ltd. & Ors.

Automatic disqualification for presumed bias arises where a judge is a party or has a relevant financial, proprietary or other interest in the cause. An interest derived through a spouse must be so close and direct that it is practically indistinguishable from the judge’s own interest.

Apparent bias depends on whether a fair-minded and informed observer, considering all material circumstances, would conclude that there was a real possibility of bias. Waiver requires a free, clear and unequivocal election made with knowledge of the essential relevant facts. The litigant need not know every detail. Continued participation after sufficient disclosure and an adequate opportunity for reflection may establish waiver.

A senior claims handler brought sex discrimination and victimisation proceedings against his employer and several managers. At the outset of the Employment Tribunal hearing, its chairman disclosed that her barrister husband was occasionally instructed by the employer. The employee raised no objection, and the tribunal later dismissed his claims unanimously.

After learning more about the husband’s professional relationship with the employer, the employee alleged bias. The Employment Appeal Tribunal rejected his appeal, holding that the potential conflict had been adequately disclosed and that he had clearly waived any objection.

The employee appealed on the grounds of presumed bias. The Court of Appeal also considered apparent bias and whether any right to object had been waived.

1. Appeal dismissed. The court held that presumed bias was not established. Automatic disqualification requires the judge to have a relevant interest in the party or cause before the court. Neither the chairman nor her husband had an interest in the employer itself. Any indirect interest arising from the husband’s occasional professional work concerned their own well-being rather than the fortunes of the employer. The case therefore fell within the apparent-bias category identified in Reg v Bow Street Magistrate, Ex p Pinochet (No 2) [2000] 1 AC 119, rather than automatic disqualification.
2. The applicable apparent-bias question was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The observer would know the jurisdiction’s legal culture but would be neither complacent nor unduly sensitive or suspicious. The chairman had no direct financial interest in her husband’s work. His work for the employer was occasional and its loss was unlikely to affect his practice or income substantially. The tribunal also included two independent members whose impartiality was unchallenged, and its decision was unanimous. The observer would therefore find no real possibility of bias.
3. Waiver requires a free, clear and unequivocal election made with full knowledge of the facts relevant to the decision. Appropriate disclosure means disclosure of the essential facts needed to understand the nature of the possible conflict, rather than every detail obtainable through investigation. It was sufficient to disclose that the chairman’s husband belonged to chambers undertaking the employer’s work and had himself undertaken such work.
4. The court had reservations about whether the employee’s initial acquiescence was freely given. He was a litigant in person confronted unexpectedly on the first morning of the hearing. Nevertheless, the proceedings were later adjourned for ten weeks. By the resumed hearing, the initial pressure had disappeared and he had sufficient knowledge and opportunity to decide whether to object. His continued participation then amounted to waiver.
5. As practical guidance, a judge facing a possible conflict should assess its seriousness, ascertain whether another judge is available, clarify and record the relevant facts, make full disclosure, explain the parties’ options and allow time for reflection. This was guidance rather than a definitive checklist.

The appeal was dismissed with costs summarily assessed at £1,000.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court rejected presumed and apparent bias and held that, in any event, the employee had waived his objection.
2. Employment Appeal Tribunal: The appeal was dismissed. The tribunal found that the chairman had disclosed that her husband was occasionally instructed by the employer and held that the employee had clearly and unequivocally waived any objection.
3. Employment Tribunal: The employee’s sex discrimination and victimisation claims were dismissed unanimously. A subsequent review application based on alleged bias was rejected.