[2024] UKUT 22 (AAC)

The circumstances relied upon by the 1^st to 3^rd appellants are not sufficient to give rise to a complaint of apparent bias. Accordingly, it was submitted, the 1^st to 3^rd appellants’ contention has no merit.

Where apparent bias is alleged, the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased. Bias is an attitude of mind which prevents the decision-maker from making an objective determination of the issues he has to resolve. The mere fact that the decision-maker has previously decided an issue or commented adversely on any party or witness, or found the evidence of a party or witness to be unreliable, does not, without more, justify a conclusion of apparent bias: AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418 at [16]-[21].

In AMEC the same person had been appointed as arbitrator to deal with the same issue twice. On the first occasion he had no jurisdiction to decide the issue, although he had done so. The Court of Appeal decided that there was no possibility of bias when he decided the same issue again, this time with jurisdiction. Mr Tosh referred to the dictum of Lord Dyson at [20] and [21], where he stated that the vice which the law must guard against is that the tribunal may approach the hearing with a closed mind. The mere fact that the tribunal has decided the issue before is therefore not enough for apparent bias. There needs to be something of substance to lead the fair-minded and informed observer to conclude that there is a real possibility that the tribunal will not bring an open mind and objective judgment to bear.

The findings of the first public inquiry were evidence before the second public inquiry. They would have fallen to be taken into account by the DTC or any other commissioner appointed to preside at the second inquiry. There is no suggestion that the DTC made any judicial error at the first inquiry. That being so, the fair-minded and informed observer would not think that the DTC was in any different position (other than, perhaps, a marginally better one by reason of his experience of the earlier proceedings) than any other commissioner who may have been appointed to conduct the second public inquiry: JSC BTA Bank v Ablyazov (No 9) [2013] 1 WLR 1845 at [69].

There may be a risk of apparent or confirmation bias in circumstances where a decision-maker has made a decision, which is overturned on review or appeal, and the matter is remitted to or otherwise comes before the same decision-maker to determine exactly the same issue, on the same evidence and arguments, a second time. In that scenario, the risk is that the decision-maker may be inclined to reach the same decision a second time because it is plain from the earlier decision that his mind is made up and it will be difficult, if not impossible, to change it, or at least that there may be a human desire to reach the same result if only to be able to say “I told you so”. That is the risk of allowing a decision-maker a second bite at the cherry discussed in HCA International Ltd at [62].

The DTC was asked to determine broadly the same issue, but on new and different evidence and arguments, and he reached a different conclusion. The fact some of that evidence came from the same witnesses is irrelevant. The DTC was not having a second bite at the (same) cherry.

In any event, absent special circumstances, a readiness to change one’s mind upon some issue, whether upon new information or further reflection, and to change it from a previously declared position, may be taken to be a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis: Sengupta v Holmes [2002] EWCA Civ 1104 at [31]-[37].

There are no special circumstances or other grounds to reasonably doubt that the DTC approached the second inquiry with anything other than an open mind or to reasonably suspect that the DTC approached the second inquiry with a closed mind or pre-judged the issue before him at the second inquiry. That is confirmed by the fact that the DTC reached a different conclusion. Any confirmation bias favoured the appellants.

In those circumstances, the complaint of apparent or confirmation bias has no merit. The DTC did not act unfairly, damage public confidence in thedecision-making process or act contrary to the principles of natural justice.