Hussein & Anor v Gibson & Anor

Permission to appeal should be refused where allegations of judicial bias or procedural unfairness have no support in the trial judgment or transcript and the proposed appeal has no prospect of success. A judge dealing with litigants in person may fairly elicit evidence, control interruptions, caution against unnotified new matters, and allow cross-examination and final submissions. Those steps do not establish unfairness where the judge maintains a fair balance between both parties. Alleged prompting or assistance to one party must be assessed from the complete trial record. Questions that clarify evidence, and matters raised independently by a party, do not demonstrate bias.

Mr Hussein applied for permission to appeal from a judgment given by His Honour Judge Cowell at the Central London Civil Justice Centre on 31 March 2008. The application was adjourned after Mr Hussein produced newspaper articles and alleged that they had been supplied or used by the trial judge, supporting an allegation of bias.

The trial judge denied knowledge of the articles. At the resumed hearing, Mr Hussein alleged that he had been prevented from presenting his case and evidence, subjected to hostile questioning, denied cross-examination and voluntary evidence, and that the judge had assisted Mr Gibson and held a personal grievance against him. The central issue was whether the transcript and judgment supported those allegations and justified permission to appeal.

1. Application refused. Lord Justice Rix concluded that the application for permission to appeal had no prospect of success. The allegations of bias and unfairness were assessed against the trial judgment and the complete transcript of the proceedings.
2. The trial judge had accepted that he knew nothing of the newspaper articles. The Court of Appeal accepted that assurance. The transcript contained no indication that the judge knew of the material. Questions about Mr Hussein's professional background were directed to clarifying his evidence, not to quoting or relying on the articles. References to Johnson Matthey Bank and BCCI had been introduced by Mr Hussein, and the judge had indicated that they were unrelated to the dispute.
3. The transcript showed that the judge fairly assisted both litigants in person by eliciting their evidence. He permitted cross-examination of the opposing party and allowed final submissions. His direction that Mr Hussein should stop interrupting Mrs Hussein was proper. His occasional caution that new matters should not be raised without notice did not prevent Mr Hussein from giving evidence and reflected the need to maintain fairness between the parties.
4. There was no hostile cross-examination by the judge and no evidence that he prompted or assisted Mr Gibson. The matters relied on by Mr Hussein, including whether items were paintings or prints, whether a watercolour was damaged, and whether goods were insured, had originated in Mr Gibson's own evidence.
5. The complaint about an earlier piece of litigation did not establish personal bias in the present proceedings. The trial judgment was careful and fair. The underlying findings were also supported by the evidence: the Hussein parties' valuations were unsupported and shifting, whereas the judge was entitled to prefer Mr Gibson's evidence. Order: application refused.

• Court of Appeal (Civil Division): At the resumed hearing on 8 May 2009, Lord Justice Rix refused permission to appeal and rejected the allegations of bias and procedural unfairness.
• Court of Appeal (Civil Division): At an earlier hearing, reported at [2009] EWCA Civ 244, the application was adjourned after Mr Hussein produced further material and the Court sought the trial judge's response.
• Central London Civil Justice Centre: His Honour Judge Cowell gave judgment on 31 March 2008.