It's not often that a leading judgment in the Court of Appeal turns on the meaning of an article in The Lawyer. The piece, which appeared on 21 June this year, was written by the personal injury specialist Bill Braithwaite QC. He looked at personal injury claims in the new post-Woolf era of court-managed litigation and concluded that fair compensation for victims was likely to remain a dream.
Mr Braithwaite also sits part-time as a recorder. Earlier in June, he had awarded a road accident victim £227,000, most of which was compensation for future loss of earnings. The defendant (or his insurance company) appealed, disputing the victim's alleged inability to work.
One of the grounds of appeal was that at the time of the trial there was a real danger the recorder could have been influenced by what the Court of Appeal called "an unconscious but settled prejudice" against the defendant's insurance company. In support of this, the defendant's counsel relied on four articles written by Mr Braithwaite, of which the one published in The Lawyer was said by the Court of Appeal to be the most revealing. That established that Mr Braithwaite was "very sympathetic to the position of claimants" in personal injury cases.
In its ruling last week, the Court of Appeal said there was no suggestion of actual bias on the part of Mr Braithwaite. The recorder had shown he was conscious of judicial duty by disclosing his membership of the Association of Personal Injury Lawyers (which represents claimants rather than defendants). But the judges could not exclude the possibility that "a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder might not unconsciously have leant in favour of the claimant and against the defendant in resolving the factual issues between them". A re trial was ordered.
The case was heard by England's three most senior full-time judges: the Lord Chief Justice Lord Bingham, the Vice Chancellor Sir Richard Scott and the Master of the Rolls Lord Woolf (which all goes to show that any Tom, Dick or Harry can sit in the Court of Appeal). This unusually strong court was convened to consider five separate applications for permission to appeal, all of which raised allegations of judicial bias. The judges laid down a number of sensible guidelines. Locabail (UK) Ltd v Bayfield Properties Ltd establishes there can be no objection to a black, Jewish, middle-aged, working-class, lesbian judge; nor would there be much you could say about a former Conservative cricket-loving freemason regularly interviewed by The Sun. On the other hand, there might well be real danger of bias if a judge was a personal friend or a sworn enemy of someone involved in the case (other than one of the lawyers, which was perhaps to be expected).
Lawyers who have lost cases have been pleading bias ever since the law lords ordered a new hearing in Pinochet last year. But that was a case in which Lord Hoffmann was automatically disqualified from sitting because of his links with Amnesty International. It's more common for judges to be told there would be a "real danger" of bias if they heard a case. And on that point there was robust advice from the Court of Appeal: judges should not stand down too readily because that would only encourage litigants to shop around for a more sympathetic tribunal. Writing for The Lawyer doesn't mean you have no judgment.