A Herbert Smith partner, sitting as a deputy judge, has come under fire for refusing to step down from a case in which he is accused of having a conflict of interest.
Lawrence Collins, one of the few solicitor silks, ruled there was no conflict of interest in hearing a property case in the Chancery Division. Stephenson Harwood claimed Collins had a conflict because in a previous action Herbert Smith had acted against its client's husband.
In a reserved judgment, Collins said no reasonable person would question his partiality and he was not, therefore, obliged to disqualify himself.
However, Paul Thwaite, the Stephenson Harwood solicitor representing the defendant Barbara Emmanuel, says his client now plans to appeal on the same grounds.
This is an issue, he says, which does arise sometimes. He cited Lord Hoffmann in the Pinochet case as an example.
Thwaite says: “There's no suggestion Collins was actually biased, but whether there was an appearance of bias.
“There's an important issue here. If judges come from City firms, there are increased chances of there being conflict problems. Solicitor judges are a good idea, but they should carry out careful conflict checks before sitting on cases.”
He says it was unusual to make an application on the question of partiality to the judge involved, but it was the right course to take.
Another lawyer on the case comments: “It was an interesting precedent. Lawrence Collins is a solicitor and a silk and there aren't that many who sit on the bench at present. It will be happening more and more.”