Cole & Anor v Letchworth Garden City Heritage Foundation

Apparent bias is assessed by asking whether, having regard to all the circumstances, a fair-minded and informed observer would conclude that there was a real possibility of bias. Automatic disqualification is a distinct basis and applies where the outcome can realistically be regarded as affecting the judge’s interest. An unpaid office or association with an organisation that has no stake in the dispute does not, without more, establish apparent bias. The absence of personal liability, financial interest, management role or proven financial link is important. Where those features are absent, an asserted connection with the opposing party may be too remote to justify recusal or permission to appeal.

The appellants owned a dwelling subject to a scheme of management for Letchworth Garden City, approved under section 19 of the Leasehold Reform Act 1967. The respondent refused consent for external building works, although the relevant covenant provided that consent was not to be unreasonably withheld. The Luton County Court held that the refusal was not unreasonable and dismissed the proceedings with costs.

The proposed appeal challenged the judge’s impartiality. The appellants relied on his membership and vice-presidency of Letchworth Hockey Club and his trusteeship of Letchworth Corner Sports Club, which had lease and loan arrangements with the respondent. The central issue was whether those connections created a real possibility of apparent bias.

Dyson LJ gave the leading judgment. Jacob LJ and Sir John Chadwick agreed.

1. The application for permission to appeal was refused. The appellants did not challenge the trial judge’s findings or reasoning, but relied on alleged bias.
2. The court recognised two distinct bases of disqualification. A judge is automatically disqualified where the outcome can realistically be regarded as affecting the judge’s interest. Separately, apparent bias arises where, having regard to all the circumstances, a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased. The latter test was stated by the House of Lords in Porter v McGill [2001] UKHL 67; [2002] 2 AC 357.
3. The automatic-disqualification basis was not relied upon. The apparent-bias test therefore required assessment of the judge’s connections with the clubs and the respondent.
4. Neither club stood to gain from the dispute. There was no obvious or proven financial link between the clubs and the outcome, and the clubs had not identified themselves with any cause central to the dispute. The judge had no management, consultation or funding role, no personal liability under the club’s leases or loan agreements, no financial interest and, so far as he knew, no voting rights.
5. In those circumstances, it was fanciful to suppose that a well-informed and fair-minded observer would regard the judge as possibly biased in favour of the respondent. The asserted connections had no substance for the purposes of apparent bias. The application was refused.

• Court of Appeal (Civil Division): on 5 December 2008, refused permission to appeal and dismissed the application.
• Luton County Court: on 24 January 2007, HHJ Farnworth held that the respondent’s refusal of consent was not unreasonable and dismissed the proceedings with costs.