Jackson v Thompsons Solicitors (A Firm) & Ors

Actual bias requires a closed mind that is incapable of persuasion, rather than a predisposition towards an outcome. Apparent bias is assessed by considering all relevant circumstances and asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Private communications or earlier judicial views do not, without more, establish either form of bias. A claim based on procuring an unfair trial also requires proof that the tribunal was actually biased and that the defendant’s conduct caused recoverable loss. The claim failed because the judge was not biased, the alleged pressure on the insurer was not proved, and the insurer’s later breach of contract, rather than the defendants’ conduct, caused the principal loss.

The claimant, as assignee of claims from the liquidator of Greene Wood and McLean LLP, sought approximately £71 million from solicitors, their partners and Lord Prescott. The claims arose from the failure of an application for a Group Litigation Order concerning deductions from compensation paid under the British Coal Health Compensation Schemes.

The claimant alleged that the defendants interfered with after-the-event insurance, procured the appointment of a biased judge, conspired to cause loss, procured breaches of contract, committed deceit, failed to disclose material information and used harassment as unlawful means. The central issues were whether the defendants had committed actionable torts, whether Sir Michael Turner was actually or apparently biased, and whether the alleged conduct caused the claimed losses.

1. Claim dismissed. The claimant failed against all defendants on all causes of action.
2. Actual bias involves either a direct interest or a fixed predisposition which makes the decision-maker’s mind closed to contrary argument. A mere predisposition, belief or sympathy is insufficient. The court must nevertheless adjudicate an allegation of actual bias where it is made. The distinction between predisposition and predetermination was applied from National Assembly for Wales v Condron [2006] EWCA Civ 1573.
3. For apparent bias, the court must ascertain all circumstances bearing on the allegation and ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Finality may weigh heavily against relief where no new facts exist. Earlier views expressed in case management, private correspondence, or without-notice proceedings do not by themselves establish bias. The correspondence involving Sir Michael Turner was regrettable in procedural terms but did not show a closed mind or apparent bias.
4. The court accepted, for the purposes of argument, that deliberately procuring the appointment of an actually biased tribunal might support a damages remedy beyond setting aside the decision or allowing an appeal. That possibility did not assist the claimant because actual bias and causation were not proved.
5. The alleged November 2005 pressure on Templeton was not proved. The temporary withdrawal of cover was attributed principally to Stephen Booth’s own interests, and cover was reinstated on terms which had always excluded Thompsons. The February 2006 communications did not amount to threats, instructions, unlawful pressure or harassment. Templeton’s later avoidance of the policy was its own breach of contract and was not caused by the Thompsons defendants.
6. The GLO application had formidable substantive and evidential difficulties, including uncertainty about the sufficiency and enforceability of the ATE cover. The hearing transcripts showed that Sir Michael Turner listened to and tested both sides’ arguments and did not conduct the hearing with actual bias.
7. Any assessment of future or hypothetical loss requires the court to evaluate chances rather than apply the balance of probabilities mechanically. The claimant’s calculations were substantially unrealistic. In any event, because liability failed, the damages claim could not succeed.

First-instance decision. The judgment states that the claim was dismissed.