D'Silva v University College Union & Ors

An order should record the formal disposal of an appeal or application. It should not ordinarily contain the judge’s reasons, commentary, or criticisms. Reasons belong in the judgment or in a separate reasons document. Litigants may draw attention to the law on judicial impartiality, but they may not interrogate judges or demand information to enable them to handpick the court.

The appellant was litigating employment tribunal proceedings against his trade union and individual respondents. During an appeal to the Employment Appeal Tribunal, correspondence sought disclosure of judges’ interests and made allegations concerning political affiliations and conflicts of interest.

Judge McMullen dismissed the disclosure application and stayed the appeal, but included in the order a sentence rejecting the allegations as repugnant. Judge Birtles refused to review that order and later refused a further review. The appellant appealed, seeking removal of the impugned sentence. The central issue was whether such evaluative reasons had any proper place in a formal order.

1. Appeal allowed. Permission to appeal was granted and the matter was dealt with immediately. The order was amended so that the paragraphs containing the judge’s reasons were removed. The first operative order was that the application for disclosure of judges’ interests be dismissed, followed by the stay and other directions.
2. An order properly records the judgment’s formal disposal. It is the formal disposal of an appeal or application, rather than the judge’s reasons or commentary, to which an order may properly relate. Reasons should be contained in the judgment or in a separate reasons document. Lord Justice Ward stated that orders reflect the judgment, while the reasons belong in the judgment.
3. The refusal of the disclosure request properly featured in the order because it formed part of the procedural disposal. The additional sentence describing the allegations as repugnant expressed an understandable view but had no formal role in disposing of the appeal. It was therefore properly excised, while remaining capable of standing independently as reasons if required.
4. Litigants are not entitled to handpick their court by searching for grounds to challenge a judge for bias. A litigant may remind the judge of the applicable law and practice, but may not cross-examine the judge about affiliations or make offensive assertions in support of such a demand. Where a judge’s spouse’s interests may conflict with those of a party, the judge should disclose the position and invite any objection.

Application granted and the Employment Appeal Tribunal order amended accordingly.

• Employment Appeal Tribunal: Judge McMullen dismissed the application for disclosure of judges’ interests, stayed the appeal pending consideration of allegations of bias, and made related directions. Judge Birtles refused an application to review that order and later refused a further review.
• Court of Appeal (Civil Division): Permission to appeal was granted. The appeal was allowed and the impugned reasons were removed from the formal order.