Waiver of bias

Smith v Kvaerner Cementation Foundations Ltd CA TLR 11 April

The claimant in a personal injury action was told by his counsel that the recorder about to hear the action was the head of the chambers of both himself and counsel for the defendant. In addition, the recorder had acted for companies in the same group as the defendant in the past and, furthermore, was acting for such companies in ongoing litigation. On the facts, in the absence of waiver by the claimant, the recorder should not have tried the claimant’s case. However, his counsel advised him that although it was open to him to seek an adjournment and trial before another judge, he counselled strongly against that course, stating that it was an advantage that the recorder was a member of his chambers, as he knew his qualities and the nature of his approach. He assured the claimant that he could expect a fair trial and that there would be no question of the recorder being biased. It was right that counsel should advise his client of all the implications of the situation, including the implications of an adjournment; he could advise about the judicial oath and explain that judges were trained in considering cases objectively and disregarding any personal views that they might hold, but it was not appropriate for counsel to expand on his knowledge of the personal integrity of the individual judge. Counsel’s vigorous recommendation of the qualities of the recorder was no doubt entirely justified, but it made it very difficult for the claimant to opt for an adjournment without appearing to slight the recommendation and the object of it. The difficulty was greater by virtue of the fact that the recorder was counsel’s head of chambers. The claimant was being funded by his trade union and it was not appropriate for counsel to seek to dissuade him from asking for another judge by referring to the costs that would be thrown away if he adopted that course. More fundamentally, in a case such as this, it was not part of counsel’s duty or appropriate for counsel to seek to influence the decision to be taken by the lay client. The choice was the client’s and while it was proper for counsel to inform the client of the implications of the choice, it was not appropriate for counsel to urge the client to waive his right to object to the tribunal. Accordingly, the claimant’s decision to agree to the recorder continuing to try his case was not made freely. Moreover, it was not made with knowledge of all relevant information. In consequence, it did not amount to a waiver of his right to complain of bias and there should be a retrial by another judge.