[2025] UKUT 061 (AAC)

In his application for permission to appeal the claimant raised concerns about the judge’s independence and about the way that the judge conducted the proceedings, including his conduct during the hearing and certain post-hearing matters.

At the permission stage I didn’t deal with these issues because, given my unrestricted grant of permission, I had no need and it wasn’t proportionate to do so.

Since this decision determines the appeals, I must deal with these issues now. I therefore turn to what I labelled “Ground 2” in my grant of permission: the claimant’s allegation that Judge Hobbs demonstrated by his conduct during the hearing and by what he said in his statement of reasons that he was biased against the claimant and biased in favour of HMRC.

It is easy to make allegations of bias, and litigants are sometimes tempted to make such allegations when a judge makes a decision with which they disagree or says something that annoys them. However, if they are to be established, such allegations must be supported by evidence.

The claimant alleges that Judge Hobbs’s manner at the hearing was “at times bullying and rather intimidating”. He makes some quite striking allegations about Judge Hobbs’s behaviour and demeanour, including that he “jumped up very angrily across his desk, half-screaming at me to sit down” when the claimant had stood up to assist the judge by handing up his own copy of a document the judge was struggling to locate.

I have listened to the recording of the hearing. I was able to identify the incident to which the allegation refers. It is apparent from the recording that the judge was somewhat startled by the claimant getting up. The claimant says that the recording of the hearing “does not relay the visual side and much of Judge Hobbs’ approach was conveyed by facial gestures and body language”, seeking to explain why this “bullying” manner isn’t apparent from the recording. The allegation of the judge “half-screaming” at the claimant is demonstrably false. It reflects poorly on the claimant that he made such a serious claim which he knew to be false.

While I appreciate that the claimant was disappointed by the outcome of his appeals and I can see why he found some of what the judge said in his statement of reasons to be offensive (in particular, the judge’s likening the claimant’s futures trading activity to “betting or undertaking games of chance”), I am wholly unpersuaded that Judge Hobbs was biased either against the claimant or in favour of HMRC. Rather, my listening to the recording of the hearing persuades me that Judge Hobbs came to these appeals with an open mind and was keen to understand the claimant’s futures trading activities, and his case against HMRC.

While the judge asked the claimant more questions than he asked the presenting officer for HMRC, that was perfectly understandable since the case that HMRC was presenting was a conventional one, while the claimant’s case was somewhat unusual. It therefore required more questioning by the judge for him to understand the claimant’s arguments and evidence. To me, Judge Hobbs’s persistence in his questioning of the claimant indicates his determination to understand the claimant’s case properly so that he could decide the appeals fairly and justly in accordance with the Tribunal’s overriding objective, and is inconsistent with the claimant’s argument that Judge Hobbs was dismissive of his case and had made up his mind before the hearing started.

What I have said deals with actual bias. However, because of the principle that “justice must not only be done but also be seen to be done” I must also consider the issue of apparent bias. The legal test for apparent bias is set out in Porter v Magill [2002] 2 AC 357:

“whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased.”

Whether or not the claimant genuinely believes the judge to have been biased, I have no hesitation in concluding that a fair-minded and informed observer who has considered the facts would find the allegations of bias to be unfounded.