Dwr Cymru Cyfyngedig v Albion Water & Ors

A judge who has refused permission to appeal on paper may ordinarily sit on the substantive appeal. The question is whether a fair-minded and informed observer would see a real possibility of bias or a closed mind, applying [2001] UKHL 67. An earlier refusal, even one supported by detailed reasons, does not ordinarily create that possibility. Special circumstances are required, such as prior fact-finding or language showing that the judge cannot reconsider the matter fairly. A judge’s relevant specialist experience does not itself create apparent bias or improper influence within the court.

The substantive appeal arose from a decision of the Competition Appeal Tribunal, case no 1046/2/4/04. It concerned, among other matters, the test for a margin squeeze under Article 82 of the EC Treaty and Chapter 2 of the Competition Act 1988.

Richards LJ had refused permission to appeal on the papers. On a renewed oral application, Rix and Thomas LJJ granted permission on two discrete issues. Before the substantive hearing, Dwr Cymru applied for Richards LJ to recuse himself. It relied on his detailed reasons for refusing permission and his asserted specialist experience in competition law. The central issue was whether those matters gave rise to an objectively justified appearance of bias.

1. The application for recusal was refused unanimously. Sir Anthony Clarke MR gave the reasons. Longmore and Richards LJJ agreed.

2. The governing inquiry was whether, having ascertained the relevant circumstances, a fair-minded and informed observer would conclude that there was a real possibility that the judge was biased. In this context, the issue was whether Richards LJ’s earlier refusal of permission might prevent him from deciding the appeal objectively after hearing the arguments. The court applied Porter v Magill, [2001] UKHL 67, and the Court of Appeal’s reasoning in Sengupta v Holmes, [2002] EWCA Civ 1104.

3. The ordinary case of a judge refusing permission on the papers does not establish apparent bias. The judge has not determined the factual merits and may reconsider an earlier view in light of further material, fuller submissions and oral argument. Special circumstances may produce a different result, including prior responsibility for disputed findings of fact or intemperate language showing a fixed view. None existed here.

4. The length and care of Richards LJ’s earlier reasons did not make the case exceptional. Much of those reasons concerned issues no longer live on the appeal. Nor did any relevant specialist experience create a real risk of partiality or undue influence: members of an appellate court may properly give due weight to a colleague’s experience in a specialist field. Richards LJ could be expected to consider all the material and arguments with an open mind.

• Court of Appeal (Civil Division): The court refused the appellant’s pre-hearing application to recuse Richards LJ from the substantive appeal.

• Court of Appeal (permission stage): Richards LJ initially refused permission on paper. On a renewed oral application, Rix and Thomas LJJ granted permission on two issues of law.

• Competition Appeal Tribunal: The underlying decision, case no 1046/2/4/04, was under appeal. Its substantive disposition is not stated in this judgment.