Bubbles & Wine Ltd v Lusha

Apparent bias is determined by asking whether, after ascertaining all relevant circumstances, a fair-minded and informed observer would conclude that there was a real possibility of bias. A judge’s private discussion with one party’s advocate during a continuing case, especially if it addresses the merits, is seriously improper and should be avoided. It does not, however, itself establish apparent bias.

Where the judge’s provisional comments were intended for both parties, were promptly disclosed, and no private submissions were invited or received, the observer would not infer a predisposition based on anything other than the merits. If apparent bias is established, recusal is automatic; cost, delay and proportionality are irrelevant.

Bubbles & Wine Ltd engaged Mr Lusha to carry out building works. Mr Lusha recovered the unpaid balance of his invoices in the Central London County Court. The company’s counterclaim for delay, defects and VAT-related loss was dismissed.

The company’s first appeal to a circuit judge failed. It then obtained permission to bring a further appeal limited to apparent bias. The issue arose because, after evidence had concluded but before written closing submissions, the trial judge spoke privately with Mr Lusha’s counsel. The conversation included provisional comments on evidential weaknesses in both parties’ cases, which counsel passed to the company’s counsel.

The central issue was whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the trial judge was biased.

1. Appeal dismissed. Applying the test in Porter v Magill [2001] UKHL 67, the court held that a fair-minded and informed observer would not find a real possibility that the trial judge was biased.

2. The judge’s conduct was seriously misguided. A judge should not seek a private conversation with one party’s advocate while a case continues. It risks an appearance of favouritism and leaves the other party uncertain about what was said. It was particularly wrong to discuss the merits outside court and without a record. If a judge considers it helpful to express provisional views, the parties as well as their advocates should be told in an open and transparent process.

3. Those errors did not establish apparent bias on the particular facts. The private conversation was known to, and initially agreed by, the company’s counsel. Its content was reliably established. The judge made clear that his comments were intended to help both parties prepare submissions, required them to be communicated to the other side, and did not receive or invite private submissions. The comments were provisional and concerned evidential weaknesses in both cases.

4. The court rejected the contention that the judge’s later incomplete email account showed that he had prejudged the dispute. Although the omission was unhelpful, it did not reasonably support an inference of a final adverse decision. Nor did the judge’s mistaken suggestion that proportionality and cost were relevant support apparent bias.

5. If the apparent-bias test is satisfied, disqualification follows automatically. Inconvenience, expense, delay and the perceived difficulty of a retrial cannot justify refusing recusal. Here, however, the threshold for apparent bias was not met, so the judge had correctly declined to recuse himself.

• Court of Appeal (Civil Division): dismissed the further appeal on apparent bias: [2018] EWCA Civ 468.

• Central London County Court, Circuit Judge: dismissed the company’s first appeal by a judgment dated 2 June 2016.

• Central London County Court, Deputy District Judge: gave judgment for Mr Lusha on 28 April 2015 and dismissed the company’s counterclaim.