M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd

A trial is not unfair merely because a first-instance judge adopts robust case management, intervenes frequently, or expresses irritation. The decisive question is whether the conduct impaired the judicial function or prevented a party from properly presenting or testing its case. Intervention during evidence carries greater risk than intervention during submissions, particularly where it becomes lengthy, unjustified or obstructive.

Actual unfairness and apparent bias are distinct inquiries. Apparent bias requires the court to identify all relevant circumstances and ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A careful judgment cannot cure an unfair hearing, but it may reassure the reviewing court that robust management did not cross that line.

The Appellant was the tenant of four hotel premises protected by the Landlord and Tenant Act 1954. The Respondent had obtained findings that statutory grounds for terminating the tenancy and refusing a new tenancy were established.

The Appellant did not challenge the factual findings or the reasoning of the trial judgment. It appealed the trial process, alleging that the trial judge’s interventions, criticism, treatment of witnesses and counsel, use of an inadmissible Employment Tribunal decision, and apparent differential treatment rendered the hearing unfair or gave rise to apparent bias.

The central issues were whether the conduct actually impaired the fairness of the trial and whether a fair-minded and informed observer would have concluded that there was a real possibility of bias.

1. Appeal dismissed. The court considered actual unfairness and apparent bias to be distinct, although the same conduct may be relevant to both. Actual unfairness required an assessment of whether the judge failed to discharge the judicial function so that the trial process was impaired. Apparent bias required the two-stage approach stated in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 and Porter v Magill [2001] UKHL 67.
2. A first-instance judge has a wide latitude in managing proceedings, consistently with CPR 1.1, as explained in The Mayor and Burgesses of the London Borough of Southwark v Maamefowaa Kofi-Adu [2006] EWCA Civ 281. That latitude is not unlimited. Judicial intervention in oral evidence carries particular risks because the judge may descend into the arena, as explained in Yuill v Yuill [1945] P 15.
3. The quantity of interventions is not determinative. Their justification, character, effect and context must be assessed. Intervention may properly ensure that questions are grounded in the evidence, prevent submissions being put to witnesses, protect elderly witnesses, enforce procedural rules and maintain proportionate use of court time. Intervention in closing submissions is different: the judge may test counsel’s case more critically and may disclose a provisional view.
4. The judge’s conduct was at times excessively interventionist, acerbic, disparaging and intimidating, and the repeated references to costs were inappropriate. Nevertheless, the interventions were substantively justified in the context of a disorganised and inadequately prepared case. The difficulties in presenting and testing the evidence were principally caused by the state of the Appellant’s case, rather than by the trial process.
5. The judge had erred in allowing reliance on a 2016 Employment Tribunal decision which was inadmissible under Hollington v Hewthorn & Co Ltd [1943] KB 587 and Secretary of State for Trade and Industry v Bairstow [2003] 3 WLR 841. However, the error did not demonstrate bias or render the trial unfair. The judgment showed that the judge ultimately put the decision aside.
6. Viewed in the round, the conduct did not prevent sufficient exploration of the evidence and would not have led a fair-minded and informed observer to conclude that there was a real possibility of bias. The appeal was dismissed.

• High Court (Chancery Division): appeal from the order of HH Judge Baucher dated 9 February 2017, as varied by Morgan J on 26 April 2017, dismissed. The Appellant had permission to appeal from Barling J.