[2025] UKUT 00031 (TCC)

Save for the further point mentioned at [18] below, the applicant’s oral case did not add anything further to the points made in the written application. Having considered the matter again, my decision remains that the ground is not arguable and that permission should be refused for the same reasons as were set out in my earlier refusal of permission decision. For convenience I replicate those at [7] to [17] below with some minor modifications.

The application raises the following matters under this ground.

First, that after the hearing and prior to the decision being released, Mr Mark Gordon [being the director of the appellant and sole witness of fact for the appellant] and the judge “met twice on 8 July 2023, during a religious ritual and social gathering, chatting for over an hour”. The application maintains that “Whilst the case was not discussed” Mr Gordon was “very uncomplimentary” about the school at which his child and the judge’s child attended “subsequently learning that the judge was a school governor”.

Second, that three days later, on 11 July 2023, Mr Gordon’s child and the judge’s child travelled together for one month on a school trip abroad which consisted of five students from the school as part of a larger group. The application states “It is understood they spent considerable time together.” The application recognises “there is no positive suggestion the two students talked about the case” but nevertheless goes on to submit that a:

“…fair-minded observer could not be certain that post-hearing occurrences did not lead to some form of unintentional or subconscious bias which influenced the FTT’s reasoning process on the issues when it came to their decision”.

The relevant test for apparent bias as set out in Porter v Magill [2002] 2 AC 357 (at [103]) is:

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

In Locobail v Bayfield Properties Ltd [2000] QB 451 the Court of Appeal put the question as whether the observer “would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case…”. It explained that the reasonableness of such apprehension:

“…must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account that they have a duty to sit in any case in which they are not obliged to recuse themselves.”

The Court of Appeal (emphasising the fact-sensitive nature of the question) went on nevertheless to list a number of bases which they could not conceive as constituting a valid basis of objection but then continued:

“By contrast, a real danger of bias might well thought to arise if there were a personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the case, particularly if the credibility of that individual could be significant in the decision of the case;…”

As to the correct facts known to the fair-minded observer I am in no position to establish whether any of the factual allegations concerning the “post-hearing occurrences” as the application describes them are correct. But if I were to assume they were, then putting the application at its highest, the point would be that the judge had somehow perceived Mr Gordon’s “very uncomplimentary” comments about the school as a critique of the judge’s school governorship. However even then I would not consider that circumstance then meant it was arguable there was apparent bias in the judge continuing to be part of the panel which issued the decision.

The nature of the comments (concerns about the state of a school by one school pupil parent to another, a not altogether uncommon occurrence, and which could not have been explicitly directed towards the judge’s role as governor as the application says this was only discovered by Mr Gordon subsequently), and the context in which they were made, mean the comments would not come anywhere close to engendering the sense of “animosity” referred to in Locobail. Similarly there is nothing in the nature and extent of personal contact which suggests there was a “personal friendship” or that the judge and Mr Gordon could be said to be “closely acquainted” (and furthermore it is not apparent that this was a case where Mr Gordon’s credibility was significant).

As to the fact of such perception of criticism, the extent of the judge’s personal contact with Mr Gordon, or that their children spent “considerable time together on a school trip”, none of these post-hearing circumstances whether alone or together would mean it was arguable that a fair-minded observer would conclude “that there was a real possibility the judge was biased”. The fair-minded observer would be mindful of the oath the judge had taken. They would rightly expect the judge to set aside any perception of criticism of this nature, or passing acquaintance (formed through being parents whose children went to the same school and on the same school trip, or through attendance at the same religious gathering) in order to properly fulfil the judge’s judicial role on the tribunal panel.

Looking at the matter from the corresponding perspective of whether, following any criticism perceived from Mr Gordon’s comments, the judge ought to have recused themself, the observations of the Court of Appeal in Triodos Bank N.V. v Dobbs [2005] EWCA Civ 468, would suggest that recusal would have been the wrong course. In that case Chadwick LJ was invited to recuse himself on the basis of criticisms which included personal criticisms against him regarding his conduct in relation to the applicant’s related proceedings. Chadwick LJ explained (at [7]):

“It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If the judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised – whether that criticism was justified or not…”

For the reasons above, even if the facts advanced in the application are assumed to be true they would not disclose an arguable error of law in terms of apparent bias.

Mr Brown’s oral submissions also invited me to add into the consideration of apparent bias the point advanced below that the judge had refused to allow Laurence Supply’s expert’s samples to be examined. However as explained below (at [28]) any such refusal was consistent with the FTT having regard to the sample’s relevance in view of the scope of the case. A fair minded and informed observer, having considered the facts, would not, in my view, conclude from any such refusal there was a real possibility that the judge was biased but would conclude the judge was case-managing the matter according to their view of the issues in the case. Nor, as a refusal that was reconcilable with the FTT’s view of the scope of the case, would it alter in any away the analysis above that the “post-hearing occurrences” had not given rise to any apparent bias.

Permission to appeal in relation to Ground 1 is therefore refused.