Evans v The University of Oxford

A judge is not required to recuse himself merely because he graduated from, or belongs to the alumni of, an organisation that is a party. The question is whether a fair-minded and informed observer would conclude that there is a real possibility of bias. Limited alumni connections and voting rights do not establish apparent bias without further involvement in the organisation. Different considerations may arise where the judge has an active role in its councils or affairs. Permission to appeal may also be refused where the explanation for delay is weak, the proposed appeal lacks merit, or the issues have become academic.

Dr Anna Caitlin Evans sought permission to appeal from HHJ McMullen QC’s dismissal of her appeal against the Employment Appeal Tribunal registrar’s refusal to extend time under Rule 3.10 of the Employment Appeal Tribunal Rules 1993. She argued that HHJ McMullen was actually or apparently biased because he was an Oxford graduate and member of the University’s alumni. She also raised procedural complaints, human-rights arguments and challenges relating to an earlier employment claim. The court confined the application to the appeal against HHJ McMullen’s decision. The central issues were whether recusal was required and whether the proposed appeal had a real prospect of success.

Application refused. Lord Justice Pill agreed with the written refusal of Elias LJ and found no real prospect of a successful appeal.

1. Apparent bias. There was no evidence of actual bias. Applying the fair-minded and informed observer approach illustrated by Porter v Magill, the judge’s graduation from Oxford and membership of its alumni did not create a real possibility of bias. HHJ McMullen had no involvement in the University or university life beyond those connections. His right to vote on certain issues in convocation was insufficient to require recusal. Active involvement in university councils might raise different considerations.
2. Extension of time and case management. The registrar was entitled to take a strict approach to the time limit under Rule 3.10 of the Employment Appeal Tribunal Rules 1993. The explanation for the three-day delay was weak, and the applicant had demonstrated experience in conducting litigation. The tribunal’s earlier refusal to postpone the pre-hearing review was a case-management decision involving a wide discretion. No error of law or Convention-rights infringement was shown.
3. Prospects and academicity. The proposed appeal had no merit and had become academic because the postponement sought had subsequently been granted. The applicant could not use this appeal to set aside the judgment in a separate claim. The procedural complaints, including an admitted error in the EAT’s seal date, disclosed no point of law with a real prospect of success. The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): On 12 October 2010, the application for permission to appeal was refused: [2010] EWCA Civ 1240.
• Employment Appeal Tribunal: HHJ McMullen QC dismissed the appeal against the registrar’s refusal to extend time and refused permission to appeal on 23 April 2010.
• Employment Appeal Tribunal Registrar: The registrar refused to extend time for the application, which was lodged three days late.