Riseborough & Anor, R (on the application of) v National Grid Electricity Transmission Plc

Judicial review is concerned with legal error, not with a general reconsideration of the facts or the admission of subsequent evidence. A decision cannot ordinarily be shown to have been unlawful by evidence unavailable to the original decision-maker.

Apparent bias is assessed by asking whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. A judge’s previous professional dealings with a party’s lawyers ordinarily do not satisfy that test. A tribunal may decide an interlocutory application and consequential costs on written material where the parties have a fair opportunity to respond.

The claimants referred a compensation dispute concerning electricity way-leaves to the Lands Tribunal. At a directions hearing, the tribunal granted National Grid further time to instruct replacement experts and ordered the claimants to pay the costs of the application on an indemnity basis.

Permission for judicial review was limited to whether that costs order should be quashed. The claimants relied on later evidence, alleged apparent bias arising from the judge’s former professional dealings with National Grid’s solicitors, and alleged unfairness because the experts were not called to give oral evidence. The central issues were whether the decision involved an error of law, apparent bias or procedural unfairness.

1. The claim was dismissed. The only decision within the scope of permission was the Lands Tribunal’s order of 10 April 2007 requiring the claimants to pay National Grid’s costs on an indemnity basis.
2. Judicial review is not an appeal on the facts. It requires an error of law. In circumstances such as these, later evidence could not establish that the original decision was unlawful, because the court had to assess the decision by reference to the material before the tribunal when it acted. The later joint letter could not therefore be relied on to convert the proceedings into an appeal or to seek rescission of the costs decision.
3. The test for apparent bias was whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased. The test applied both at common law and under Article 6 of the European Convention on Human Rights: McGill v Porter [2002] AC 357.
4. Previous instructions to act for or against a party, solicitor or advocate ordinarily did not establish apparent bias. Only extraordinary circumstances arising from the particular facts could justify that conclusion: Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451. The judge’s former professional dealings with National Grid’s solicitors were not sufficiently unusual. There was no obligation to disclose them, no need for the claimants’ consent, and no right for the claimants to choose the tribunal member.
5. The tribunal had given the claimants the relevant correspondence and an opportunity to answer it. A decision on an application to extend time, and on consequential costs, could properly be reached principally on written material. The absence of oral evidence from the experts did not make the hearing unfair.
6. The court could not review the subsequent quantification of costs in this claim. It also observed, obiter, that rule 38 of the Lands Tribunal Rules did not confer power to rescind the earlier costs order, although that later decision was outside the permission granted.

First-instance judicial review proceedings. Permission was initially refused by Underhill J, then granted on a limited basis by Holman J. Permission to appeal that grant was refused by Elias LJ on the papers and by Arden LJ at an oral hearing.