Jeffery v The Financial Conduct Authority

A judge is not automatically disqualified from hearing a case merely because of previous professional experience in the same general field, or because another judge of the same tribunal is disqualified. Recusal is generally required where the judge has had personal involvement in the case.

Apparent bias is assessed by asking whether the fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility of bias. A refusal to recuse does not itself establish bias, and an adverse decision or alleged error of law or fact is not evidence of bias.

The Court of Appeal has no jurisdiction to grant permission to appeal an Upper Tribunal decision where permission was never sought from the Upper Tribunal.

This was an application by Jeffery v The Financial Conduct Authority for permission to appeal from decisions of the Upper Tribunal (Tax and Chancery Chamber).

The Upper Tribunal had made findings of misconduct against Mr Jeffery, imposed a penalty of £150,000 and made a prohibition order. It had earlier rejected his application that the tribunal recuse itself for apparent bias because a former chair of the Authority’s Regulatory Decisions Committee had become an Upper Tribunal judge and shared premises with one of the tribunal judges.

The central issues were whether the Court of Appeal had jurisdiction to entertain a challenge to the recusal ruling and whether the circumstances disclosed actual or apparent bias.

The application for permission to appeal was refused.

1. Jurisdiction. Under section 13 of the Tribunals, Courts and Enforcement Act 2007, read with sections 13(4) and 13(5), an application to the Court of Appeal could be made only after permission or leave to appeal had been refused by the Upper Tribunal. Mr Jeffery had not sought permission from the Upper Tribunal to appeal its recusal decision of 6 December 2012. The Court of Appeal therefore had no jurisdiction to grant permission to appeal that decision on the ground of legal error.
2. Applicable test. In a case short of actual bias, the question was whether the fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the tribunal was biased. The observer adopts a balanced approach and is neither complacent nor unduly sensitive or suspicious.
3. Previous professional involvement. A judge’s previous experience as an employee, public official or member of a governmental body in the general sphere of the case will not generally disqualify the judge from sitting. Recusal is likely to be necessary where the judge has had personal involvement, directly or indirectly, in the particular case. The possible disqualification of one judge does not disqualify every other judge of the same court or tribunal merely because of shared institutional membership or physical proximity.
4. Application to the facts. Safeguards had been put in place to prevent Judge Herrington from involvement in cases connected with his former role. He had not chaired the relevant meetings or signed the warning and decision notices, and there was no evidence that he had influenced Judge Berner. Judicial independence and impartiality were to be assumed absent clear evidence to the contrary.
5. Judge Berner’s refusal to recuse himself did not itself establish actual or apparent bias. Cases in which the conduct of proceedings gives rise to a suspicion of bias are rare. The tribunal’s detailed decision, its careful treatment of the evidence, and its criticism of the Authority did not support such an inference. Complaints about the tribunal’s factual findings, access to evidence or penalty concerned alleged legal or factual error, not bias.

• Court of Appeal (Civil Division) — On 19 January 2016, Lord Justice Christopher Clarke refused permission to appeal: [2016] EWCA Civ 187.
• Court of Appeal (Civil Division) — Jackson LJ had refused permission to appeal on 18 May 2015.
• Upper Tribunal (Tax and Chancery Chamber) — The tribunal rejected the recusal application on 6 December 2012 and, by its decision of 27 June 2013, upheld the misconduct findings, penalty and prohibition order. The penalty was finally determined at £150,000 on 9 August.