Smith v Kvaerner Cementation Foundations Ltd & Anor

A party waives an objection based on apparent judicial bias only by a clear, informed and unequivocal choice made freely and without pressure. The party must know the material facts, understand the available options and their consequences, and have a fair opportunity to decide.

Counsel may explain those options and their practical implications. Counsel should not urge waiver, rely on personal assurances about the judge’s integrity, or invoke a funder’s costs exposure to influence the choice. Mere membership of the same chambers as an advocate does not ordinarily create an appearance of bias. A judge’s current professional relationship with a party does.

When considering a late appeal, procedural finality must be balanced against the paramount importance of securing a hearing before an independent and impartial tribunal.

The claimant suffered serious injuries in a road accident while travelling in a car owned by the defendant. The Chesterfield County Court dismissed his claim after finding that he had not proved that the driver had the defendant manager’s consent to drive.

The Recorder was head of the chambers to which both trial counsel belonged. He also believed that he had acted, and was still acting, for the defendant or associated companies. The claimant raised no objection before trial after receiving strong advice from his counsel that the Recorder would act fairly.

Nearly four years out of time, the claimant sought permission to appeal. The central questions were whether the circumstances created an appearance of bias, whether the claimant had validly waived his objection, and whether time should be extended so that the appeal could proceed.

1. Permission to appeal was granted, the appeal was allowed and the Recorder’s decision was quashed. The issue of liability was directed to be retried by another judge.

2. A part-time judge’s membership of the same chambers as counsel does not, without more, create an appearance of bias. The court left open the possibility that particular financial arrangements, including expense-sharing or conditional fee arrangements, might produce a different result. No such circumstances existed here.

3. A barrister or solicitor sitting judicially should not try a case involving a current client. The Recorder believed that the defendant was a longstanding and current client. Although his actual connection was with associated companies and their insurers, the claimant was entitled to object. In the absence of waiver, the Recorder should not have tried the case.

4. Waiver of an objection based on apparent bias requires an informed, unequivocal and voluntary election. The party must know all material facts and the consequences of the available choices. The party must also receive a fair opportunity to make an unpressured decision. The guidance in Jones v DAS Legal Expenses Insurance Co [2003] EWCA Civ 1071 was useful but did not constitute an inflexible set of rules.

5. The claimant knew the facts creating the apparent conflict, but he was not told how soon another judge could try the case. His counsel’s strong personal endorsement of the Recorder, who was counsel’s head of chambers, made it difficult to request an adjournment. Counsel also inappropriately invoked the possible costs exposure of the claimant’s union. Counsel could explain the options and their implications, but should not seek to influence the lay client to waive the right to object. The claimant’s decision was therefore neither fully informed nor freely made and did not constitute waiver.

6. The four-year delay strongly engaged the public interest in finality. Nevertheless, the claimant had persistently sought assistance and had repeatedly been advised that his complaint lacked merit. Once advised that an appeal was arguable, he acted promptly. The denial of the right under article 6 of the European Convention on Human Rights to an independent and impartial tribunal was the paramount consideration. A fair retrial remained possible, including through a transcript or evidence by video link. The interests of justice therefore favoured extending time and ordering a retrial.

1. Court of Appeal (Civil Division): Permission to appeal out of time was granted. The appeal was allowed, the Recorder’s decision was quashed and liability was remitted for retrial before another judge: [2006] EWCA Civ 242.

2. Chesterfield County Court: Mr Recorder Ian McLaren QC dismissed the personal injury claim on 25 April 2001 after finding that the claimant had not proved that the driver had authority to use the defendant’s car.