Eda Yaman v Tesco Stores Limited & Anor

An allegation of apparent bias is assessed objectively. The question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The litigant’s subjective perception is irrelevant.

Trial judges may intervene to clarify evidence, focus questioning and test submissions. Interventions become impermissible only where they prevent a party from properly presenting its case or impair the judge’s ability to reach balanced and objective conclusions. Provisional views formed during a trial do not amount to pre-determination if the judge remains open to argument.

The appellant challenged findings made by the Central London County Court in Tesco’s Part 20 claim arising from an alleged staged road collision. The trial judge held the appellant and another defendant liable in deceit and unlawful means conspiracy, and awarded Tesco compensatory and exemplary damages.

Permission to appeal was granted on two grounds. The appellant alleged that the trial judge appeared biased or hostile, and that excessive interventions during cross-examination made the trial unfair and restricted presentation of her case. The appeal therefore concerned the proper approach to apparent bias, judicial interventions and alleged procedural unfairness.

1. Apparent bias. The court applied the objective test stated in Porter v Magill [2002] 2 AC 357: whether the fair-minded and informed observer would conclude that there was a real possibility of bias. The observer is objective and informed, and is not the litigant, as explained in Harb v Aziz [2016] EWCA Civ 556.
2. Judicial interventions. Judges are not passive spectators. They may intervene to clarify unclear evidence, ensure that questions are understood, identify matters that are merely matters of record, and test counsel’s submissions. The latitude available to a first-instance judge is broad but not unlimited. The relevant question is whether the judge’s conduct made it impossible for counsel properly to conduct the case or caused the judge to lose the ability to reach balanced and objective conclusions. The guidance in Shaw v Grouby [2017] EWCA Civ 233, including its treatment of Southwark LBC v Kofi-Adu [2006] EWCA Civ 281, was applied.
3. The individual interventions relied upon were permissible attempts to clarify evidence, focus witnesses on questions and understand expert evidence. They did not suggest hostility, bias or procedural irregularity. The cumulative effect was the same. Robust questioning and provisional views during closing submissions did not establish pre-determination, since the trial judge remained willing to hear and test the appellant’s case.
4. Neither ground of appeal was made out. The appeal was dismissed.

• High Court (King's Bench Division): Appeal from the Central London County Court dismissed.
• Central London County Court: On 17 November 2023, the trial judge found the appellant liable in deceit and unlawful means conspiracy and awarded Tesco compensatory and exemplary damages. No citation for that decision was stated in the judgment.