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

A tribunal member may be disqualified for apparent bias where that member holds a leading governance role in a professional body responsible for regulatory policy. The question is whether the fair-minded and informed observer would conclude that there was a real possibility of bias.

It is unnecessary in such a case to choose between automatic disqualification and apparent bias. Both doctrines serve the overriding requirement that a tribunal be, and appear to be, independent and impartial. A separate investigatory subsidiary does not provide sufficient insulation where the professional body retains regulatory responsibility and requires its senior governors to sit on disciplinary tribunals.

The claimant, a student member of ILEX, was found by its Disciplinary Tribunal to have cheated in one examination. Her appeal to the ILEX Appeal Tribunal was dismissed. A serving ILEX council member sat on the Disciplinary Tribunal and ILEX’s vice-president sat on the Appeal Tribunal.

Judicial review was refused by Foskett J in the Administrative Court: [2010] EWHC 3321 (Admin). The claimant appealed, contending that the tribunal members’ positions in ILEX created automatic disqualification or apparent bias. The central issue was whether the vice-president’s leading governance role gave rise to a real possibility of bias despite her lack of personal involvement in the prosecution.

1. Appeal allowed. The orders of both the ILEX Disciplinary Tribunal and the ILEX Appeal Tribunal were quashed.

2. The governing inquiry was whether the fair-minded and informed observer, considering the facts, would conclude that there was a real possibility of bias. The court held that the doctrines associated with automatic disqualification and apparent bias could be analysed as strands of the same overriding requirement of objective independence and impartiality. It was not necessary to choose between them.

3. ILEX’s vice-president was disqualified from sitting on the appeal tribunal. Her leading role in ILEX necessarily involved an interest in its disciplinary-regulation policy. The arrangements did not achieve sufficient separation merely because investigation and prosecution were delegated to a wholly owned subsidiary acting on ILEX’s behalf. Requiring the president or vice-president to sit on appeal tribunals demonstrated ILEX’s continuing interest in regulatory decision-making.

4. The absence of actual bias, or of personal involvement in the particular prosecution, did not answer the objection. The relevant doctrines protect against unconscious influences and against the appearance of partiality. The charge, which alleged conduct likely to bring ILEX into disrepute, the possible implications for an ILEX-accredited college, and the tribunal’s powers as to costs and fines reinforced the need for institutional separation.

5. Whether every council member or director would also be disqualified did not require decision because of the respondents’ concession as to the consequence of invalidating the appeal. Rix LJ nevertheless expressed the view that the same conclusion would extend to them. Sullivan and Black LJJ agreed.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal and quashed the ILEX disciplinary and appeal decisions.
• High Court, Administrative Court: Foskett J refused judicial review: [2010] EWHC 3321 (Admin) .
• ILEX Appeal Tribunal: Dismissed the claimant’s appeal from the Disciplinary Tribunal.
• ILEX Disciplinary Tribunal: Found one cheating allegation proved, excluded the claimant from ILEX for a minimum of five years, and awarded costs.