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Case management and apparent bias

Predeterminiation iStock 000016468646Small 146x219A recent Court of Protection judgment is a salutary warning on the dangers of judges giving early indications of the conclusions they are like to reach. The CoP team at 39 Essex Chambers reports.

The case of A & B v Z, A Local Authority, & M (By her litigation Friend Y) [2018] EWCOP 4 arose out of out a tragic accident which killed three members of a family: father and two elder siblings. It left only one child X living and mother, M, with head injuries resulting in a need for 24 hour care and a loss of litigation capacity.

Theis J’s judgment concerns an appeal from an order made at the end of Court of Protection proceedings concerning M’s best interests which in turn followed family proceedings concerning the future of her son X, both of which were heard by HHJ Roberts.

At the final Court of Protection hearing, HHJ Roberts called the advocates into court without the parties or solicitors present and advised that, having dealt with the same issues in parallel family proceedings, she was “very unlikely to…. stand on my head” and reach a different decision as to whether or not M should return to live with X and his paternal grandparents. The final order which provided for M to remain in her own house separately from X was appealed, inter alia, on the ground of apparent bias on the basis that the judge stated her intention in the exchange from which the parties were excluded to decide the application consistently with the decision she had reached in the separate family proceedings.

Allowing the appeal, Theis J reiterated at paragraph 24 the conclusion of Macfarlane LJ in Re Q [2014] EWCA Civ 918, that if a claim of apparent judicial bias is established, it would “cut across the entirety of the process before the judge” an appeal would have to be allowed, and a rehearing take place before a different judge.

Drawing from the judgment in Re Q, Theis J notes the “line to be drawn between robust case management on the one hand and premature adjudication on the other,” observing that where the line is crossed there would be, as per Re Q, “a real possibility that the judge had formed a concluded view that was adverse…” (paragraph 25). Despite Re Q being a family case, Theis J observes that “its fairness principles are equally applicable [in the Court of Protection]” (paragraph 26).

Theis J concluded that the advocates-only audience before HHJ Roberts meant there was a real possibility that the judge had formed a concluded view that was adverse to the case being presented by X’s paternal grandparents prior to hearing their case. Noting the Porter v Magill [2011] UKHL 67 test for apparent bias, “whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”, Theis J concluded that even though the grandparents had not been present to hear the comments of the judge which made to the advocates in their absence, any fair-minded and informed observer who had heard them would have concluded that there was a real possibility that the judge had formed a concluded view prior to the parties’ oral submissions. Apparent bias was accordingly made out.

This case is a salutary warning to judges and advocates in the Court of Protection. “Advocates only” appearances before the court are often used as a last-minute attempt to manage recalcitrant parties in long-running cases and can be a useful means of drawing attention to the issues that are most of interest to the court.

But given Theis J’ views on where the line between “robust case management” and “premature adjudication” lies, judges should perhaps be cautious in giving too clear an indication as to the conclusions they are likely to reach in the absence of the parties and before having heard all the evidence.

This article was written by the Court of Protection team at 39 Essex Chambers.

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