Kaur, R (on the application of) v Institute of Legal Executives Appeal Tribunal & Anor

This appeal concerned whether disciplinary decisions of the Institute of Legal Executives Disciplinary Tribunal and its Appeal Tribunal should be quashed for apparent bias or because a judge was in effect acting as a judge in his or her own cause (nemo debet esse judex in propria causa). The court applied the modern test for apparent bias from Porter v. Magill: whether the fair-minded and informed observer would conclude there was a real possibility that the tribunal was biased. The court held that the presence of a serving ILEX council member/director on the Disciplinary Tribunal and of the vice-president (also a serving director) on the Appeal Tribunal gave rise to a real possibility of bias. The attempted insulation of regulatory functions by creating a subsidiary (IPSL) did not remove the relevant appearance of interest because IPSL acted on behalf of ILEX and council members retained governance responsibility. The court therefore quashed the DT and IAT decisions.

Background and parties:

• The appellant, Darsho Kaur, was a student member of the Institute of Legal Executives (ILEX). She faced disciplinary charges arising from alleged cheating in ILEX examinations, was found guilty of one charge by the Disciplinary Tribunal (DT) and excluded for a minimum of five years; the Appeal Tribunal (IAT) dismissed her appeal.
• ILEX is governed by an elected council whose members are also company directors; ILEX had formed a wholly owned subsidiary (IPSL) to carry out regulatory functions, but IPSL remained controlled by ILEX.

Procedural posture:

• Having exhausted internal appeals, Mrs Kaur sought judicial review on grounds of apparent bias and breach of the rule against a judge acting in his or her own cause. Permission applications progressed through the High Court (renewed application refused by Simon J; permission granted on paper by Elias LJ; judicial review refused by Foskett J: [2010] EWHC 3321 (Admin)). Permission to seek appellate review was granted by Lloyd LJ and this Court heard the appeal.

Issues framed:

• Whether the membership of a serving ILEX council member/director on the DT and the council vice-president on the IAT created an appearance of bias or established automatic disqualification because of a judge being in his or her own cause.
• Whether the creation of IPSL and delegation of investigatory/prosecutorial functions insulated ILEX governance members from any apparent interest.

Court’s reasoning and subsidiary findings:

• The Court of Appeal applied the Porter v. Magill test (the fair-minded and informed observer and the real possibility of bias) and considered the related principle of automatic disqualification derived from Dimes and Pinochet No 2, treating both as strands of a single requirement of impartiality and appearance of impartiality.
• The court concluded that the vice-president’s leading role in ILEX governance, and council members’ governance functions, meant they had an interest in upholding professional standards and the reputation of ILEX; that interest could create an appearance of bias even where there was no suggestion of actual bias.
• IPSL’s role as ILEX’s agent did not sufficiently insulate ILEX governance because IPSL acted on behalf of and was controlled by ILEX; subsequent rule changes (from January 2010) excluding council members from tribunal seats supported the conclusion that earlier arrangements risked undermining perceived impartiality.
• The court accepted that case-specific assessment may be required for different governance roles, but on these facts the vice-president and council members were disqualified.

Remedy:

• The Court of Appeal allowed the appeal and quashed the DT and IAT decisions.

Appeal allowed. The Court of Appeal concluded that the presence of a serving ILEX council member/director on the Disciplinary Tribunal and of the council vice-president (also a serving director) on the Appeal Tribunal created a real possibility of bias in the perception of the fair-minded and informed observer. The attempted insulation of regulatory functions by creating IPSL did not remove the relevant appearance of interest because IPSL acted on behalf of and was controlled by ILEX. Accordingly the DT and IAT decisions were quashed.

Judicial review was refused by Foskett J (order and judgment dated 23 November 2010: [2010] EWHC 3321 (Admin)). Permission to appeal to the Court of Appeal was obtained from Lloyd LJ. The Court of Appeal allowed the appeal in this judgment (Neutral Citation: [2011] EWCA Civ 1168). Prior interim procedural steps included an earlier refusal of renewed permission by Simon J and a paper grant of permission by Elias LJ.