SATIN REBUKING SINS: JUDICIARY IN UK
Case No. C1/2007/2381
In the Royal Court of Justice
BETWEEN:
Mrs JENNIFER MAYO-DEMAN & COUNCIL FOR ETHNIC MINORITY
Appellant
-and-
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(The Planning Inspectorate)
Defendant
___________________________________________________________________________________
APPELLANTS’S KELETON ARGUMENTS
____________________________________________________________________________________
Introduction:
1. Administration of justice has always been a controversial subject in democratic societies within an institutional framework of capitalism operating under the umbrella of globalisation. Criticism of democracy as an institution of governance ‘flourishing’ under the principle of one-dollar-one vote is quite well known despite claim of consumer sovereignty, free speech and fairness based on Hayekian lassaize fair economy and Karl Popperian principles of testing a conjecture. If the objectives of economic growth and social justice are in conflict in a capitalist democracy due to inadequacy of theory of distribution in Neo-Classical economics then the same conflict remain unresolved in administration of justice in legal system bequeathed by capitalism. However, our task is limited to judicial bias. It is possible to identify in judicial decisions a number of principles emerging and scope for further challenges to the conduct, as opposed to the decisions, of courts and tribunals. At the same time the implications of these decisions may make even more difficult the task of dispensing justice to parties in the legal system by those who are appointed through the political process.
2. For the sake of simplicity abbreviations used in that document are adopted here and, so far as possible, repetition of material set out there avoided.
3. For the avoidance of doubt Mrs Jennifer Mayo-Deman (from now on referred to as the Claimants) and the Council for Ethnic Minority (“CEM”), a group assisting both the Claimant and other local residents. These submissions are made on behalf of the Claimants, Mrs Jennifer Mayo-Deman & the CEM.
Facts
4. On 28 September 2007 Mr Justice Underhill gave surprised appearance to hear the appellant’s [“A”] application for permission to judicially review the decision of the Defendant [“D”]. The case is Mrs JENNIFER MAYO-DEMAN & COUNCIL FOR ETHNIC MINORITY v SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (The Planning Inspectorate), C1/2007/2381.
5. At the very outset, appellant’s counsel, Mr Burton made an application that Mr Justice Underhill should recuse himself because he has made specific findings against the appellant’s husband, Dr. Deman who is not only appellant’s husband but he is also one of the interested parties along with Mr A. J. Graham and the Council for Ethnic Minority who were assisting the appellant and other residents in the neighbourhood.
6. It is a matter of fact that Mr Justice Underhill has been a subject of complaints to President of EAT and also to Office for Judicial Complaints. Details of complaints are set out in CEM letters of complaint and the Court is requested to read them in full. Mr. Justice Underhill appeared predisposed and outlined particulars of his appearance of bias are as follows:
6(i) He failed to invite the Council for Ethnic Minority and Dr. Deman to make submissions although they were interested parties,
6(ii) In contrast, Mr Justice Underhill readout aloud letter of Mr Deacon’s solicitor in the court although he was not present,
6(iii) It is a matter of record Mr Justice Underhill and Lord Goldsmith have not only been colleagues at Fountain Square Chambers but they are close social friends as pointed out by one of he instructing solicitors who used to instruct them on behalf of the Government. Mr Justice under failed to disclose his close social and professional relationship prior to hearing Attorney General, Lord Goldsmith’s section 33 application against the appellant’s husband. Hence, he was denied an opportunity to make submissions for his recusal.
6(iv) On Lord Goldsmith’s application Mr. Justice Underhill made serious adverse findings against Dr Deman, Mr. A. J. Graham and the CEM and shown apparent bias against those who were also interested parties in Mrs Mayo-Deman’s case and who were assisting her,
6(v) In paragraph 172 of his judgment, Mr. Justice Hill found that Dr Deman was not interested in job but more interested in proving institutionalised racism in the judiciary and Higher Education from where his EAT boss Mr. Justice Elias comes from. Mr Justice Elias accepted after a couple of years that he was a member of the Association of University Teachers and sill may be paying membership dues [merged to from University & College Union (UCU)] and social and professional friend of Michael Scot, an In-house solicitor of UCU who used to instruct him while he was in practice,
6(vi) The Court staff is also a subject of complaint by appellant and all interested parties for manipulating the hearing before Mr Justice Underhill as the probability of her case end up before him was zero. Had the appellant’s name been not hyphenated with Deman case would not have gone before him,
6(v) Mr Justice Underhill relied upon Justice Burton’s decision in Ansar v Lloyd TSB plc & ors [2006]. However the facts of that case were entirely different and it was related to a CMD. Further, despite Justice Burton’s decision in Ansar on 20 June 2007, Mr Justice Elias having carried out an exercise in naiveté, he rescued himself in Dr Claudius D’Silva v MMU at the EAT on somewhat similar circumstances as Dr Deman was a lay representative of Dr D’Silva and made serious complaints against Justice Elias and for his failure to investigate his complaints. To date, Mr Justice Elias has not produced the transcript of a judgment in Deman v AUT, Mr David Triesman and Labour Party mafia to avoid his embarrassment.
6(vi) Further, Mr Justice Underhill’s venom against the CEM, Dr Deman and other interested parties was so obvious that in his Order of 11 October 2007 (received) on 18 October 2007) he stated that, “…the Second interested Party appearing in person and the First, Third and fourth interested Parties being neither present nor represented”, is unprofessional nonsense. In fact, Dr. S. Deman, First Interested Party and Mr. A. J. Graham, Third Interested Party, both were present at the hearing on 28 September & also on 10th October 2007. The Secretary of State named Greenwich Council as an Interested Party but was not present and yet there is no reference in his Order.
6(vii) Mr Justice Underhill decided to give reserve judgement so that the Greenwich Council can facilitate Mr Deacon’s (a Policeman) preparation for demolition on the day of hearing in breach of all Traffic laws and safety standards and privacy of life.
6(viii) Since Mr Justice Underhill promulgated his judgment more facts have come to light. Mr Justice Underhill and Lord Gold Smith have represented British Coal Corporation, a Government organisation and Mr. Justice Underhill’s profile on website shows that he has been an Attorney General for the Queen. He was also conferred with Knighthood which shows he is not independent of the State and party politics.
6(ix) Further, Dr D’Silva, Dr Virender Melhotra and other Indians have complained to OJC and also to Police against Mr Justice Underhill. Ms Karan Monahan QC and Mr John Hendy QC have made applications for the recusal of Mr Justice Underhill.
6(x) Appellants has produced a separate bundle on bias and invites the court to read pages 13, 17-18, 20-23, 26, 35, 40-43 and 47.
6(xi) Although Lord Goldsmith asked for a 2 year RPO Mr Justice Underhill mad it for life. Neither Attorney General nor has Mr Justice issued RPO against the white litigants, for example Derrick Stewart and Steve who brought over 100 cases
7. Since the above the hearing in the above case, Dr Deman represented Dr D’Silva at the Central London Tribunal in D’Silva v University & College Association & others who are member of the Labour Party’s National Executive Committee. Dr Deman conducted a P-H-R/CMD at which an Employment Judge Lewzey refused to recuse herself and then refused to amend the ET1 to include claim of indirect discrimination. Dr D’Silva appealed her decision. Notes of proceedings and order of Ms Lewzey’s are attached. Incidentally, Mr. Justice Underhill appeared again at the EAT to hear Dr D’Silva’s (an Indian) appeal at which Karon Monaghan, QC represented him. Mr. Justice Underhill again refused to recuse himself. A copy of Mr. Justice Underhill’s judgment and orders can be found on pages, 54 & 63-75.
8. Dr D’Silva made a formal complaint to Office for Judicial Complaints and also reported the matter to Scotland Yard for perverting the course of justice, in which Dr Deman was a witness. On 28 April 2009 Dr Deman has given witness statement on behalf of Dr D’Silva at the EAT and on behalf of Mrs. Jennifer Mayo-Deman in the Court of Appeal which he has outlined unprofessional conduct and racial bias of Mr. Justice Underhill. Dr D’Silva’s complaint to the Police against Mr Justice Underhill which has reference to Dr Deman representing him at the Tribunal which can be found on pages, 47, 76-82.
CASE SCENARIO ONE:
9. The issue in Jones v DAS Legal Expenses Insurance Co Ltd (2003) EWCA Civ 1071 was whether the very tenuous link between the Employment Judge and the respondents undermined the decision. When the appellant appeared in person before the Court of Appeal the issue was resolved. The material facts were these. The applicant claimed that the respondents had both discriminated against him and victimised him on the grounds of sex. He was unsuccessful. The decision rejecting his claim was devoid of error, and was not challenged. Mr Jones attacked the decision on the grounds that the chairman was biased.
10. At the outset of the hearing before the Employment Tribunal, the Employment Judge had voluntarily disclosed to the parties in open tribunal that her husband was a member of a set of barristers' chambers who occasionally received instructions from the respondents. Her explanation of the verbal exchange that had taken place indicated that she had fully disclosed the nature of the very tenuous financial link between herself and the respondents, and that the applicant had waived any objection he might have had to the chairman sitting. The relationship was not a financial relationship in which either the chairman or her husband stood to gain from the outcome of the litigation in question. In any event, the applicant had waived the right to object by his failure to object at the hearing notwithstanding the invitation to do so.
CASE SCENARIO TWO
11. HHJ Collin appointed HHJ Dean, a recorder to hear a strikeout application along with two lay assessors in Deman v Commission Equality & Human Rights & its former Chairmen. In the afternoon of the day for hearing one of the lay assessors, Mr Mirza made a surprised disclosure that he had been the Deputy Director of the Commission on Racial Equality and he had regular meetings with some of the Defendants, in particular, with Mr Gurbux Singh, former Chairman of the Commission, then he was. He was convicted for assaulting/threatening a policeman on unrelated issue. It also turned out that HHJ Dean himself had worked in the Defendants’ organisation some 20 years ago. An application for recusal was made and it was granted due to Mr Mirza’s association with the Defendants although HHJ Dean thought his involvement with the Defendants was a long time ago. It was contented that mere substitution of another lay assessor would not have cured the appearance of bias, had the whole tribunal not rescued itself. The decision of the court would have been contaminated. In order to avoid further embarrassment HHJ Collin has taken over conduct of all Claimants’ cases to make generic decisions.
CASE SCENARIO THREE
12. The case of Breeze Benton Solicitors (A Partnership) v Waddell (Appeal No. UKEAT/0873/03) (Breeze Benton) was an appeal to the Employment Appeal Tribunal based on the refusal of an Employment Tribunal Judge to recuse himself following previous proceedings involving the same respondent and his complaint to the Lord Chancellor's Department concerning the Judge’s conduct. It was contended, rather, that the entire decision was undermined by the appearance of bias in that the Judge should not have sat on the case and his decision to do so rendered the whole decision unsound.
13. The background history to the appeal was that the Employment Judge had previously determined an application against the respondents, in which he had allegedly made adverse remarks about the respondent, and had also made an order for costs against them. The respondent made a complaint to the Lord Chancellor's Department, which ended inconclusively. When the present case, listed for nine days, was scheduled for hearing, it appeared that the Employment Judge had taken some steps, in anticipation of an application by the respondents to recuse himself, to ascertain if the application could be listed before another Judge. It could not; if the case was to be adjourned there would be delay in relisting and so the tribunal had to meet and deal with an application on the morning of the hearing by the respondents to recuse. It rejected the application in this way according to its extended reasons:
CASE SCENARIO FOUR – BUMPY RIDE AT EAT
14. The case of Dr. D’Silva v NATFHE [UCU], Michael Scott & Others EAT/PA/1161/06/LA, on the 26th June to 6th July 2006 the Buckley Tribunal heard Dr. D’Silva claim of racial discrimination and victimisation against NATFHE, Michael Scott & others at the London Kingsway Tribunal. The Kangaroo Tribunal dismissed his claims on the 2nd August 2006.
15. On 7th July 2006 Dr D’Silva’s union [NATFHE] wrote to him that following the amalgamation of NAFTHE with the AUT to form the UCU, the union Rules for legal aid have changed and an amended to Rule 5.6 has been introduced. This clause has a draconian affect on members as the UCU can refuse assistance to anyone due to alleged or perceived conflict of interest to exclude troublemakers. Since July 2006 to end of last year under the above clause the UCU has refused legal assistance to 3 other members other than Dr D’Silva and Mr. Deman. Of the 5 victims 4 are of Indian origin and 1 Iranian. Further to teach Dr D’Silva right lesson the UCU has applied for costs in regard to the above adverse decision of the Kangaroo Court.
16. Dr D’Silva appealed the decision of Buckley Tribunal. On 20th June 2007 some members of the CAFAS and the CEM attended the EAT as observers and they witnessed how even at the highest level of EAT, Justice Elias, President climbed down which resulted in his humiliating recusal from hearing an Appeal in Dr D'Silva v UCU, Michael Scott, Paul Mackney & others.
17. On the 17th July 2007 to the surprise of the CEM (Council for Ethnic Minority) and members of CAFAS, Mr. Justice Silber finally granted Dr D’Silva’s Appeal against the Buckley Tribunal’s perverse decision against his Union, Michael Scott & other Labor Party Mafia [now called UCU]. The appeal was granted on the following grounds:
• The tribunal erred in law as it took a fragmented approach to the case examining each event individually instead of looking at the totality of the issues dating back to 2002.
• The Tribunal failed to construct a hypothetical comparator.
• The Tribunal failed to draw any inferences in the Union’s failure to disclose documents in regard to alleged comparators, despite a court order requesting the Union, comply.
• The Tribunal failed to draw discriminatory inferences in regard to
a. Failure to keep ethnic monitoring information
b. Evasive answers to the RRA questionnaire
c. Allegations of race discrimination made by the claimant to the CRE and the racial bias evinced in hostility.
However Dr D’Silva had a bumpy ride before getting anywhere. The granting of the appeal hearing came after three previous unsuccessful attempts to secure a hearing.
LAW ON BIAS:
18. Mr Justice Underhill decided to hear the above matter on 28 September 2007. The Claimants refer to a recent decision of the Court of Appeal concerning the EAT’s jurisdiction in bias appeals: Lodwick v. London Borough of Southwark [2004] IRLR 554 where the Court of Appeal held that the EAT has jurisdiction to determine whether a hearing before an employment tribunal was unfair on the ground of apparent bias unless the allegation of bias is on its face so lacking in substance that it could not be said to amount to a real challenge to the decision.
19. Bias is a breach of rules of natural justice. In an impartial and fair court there is no room even for apparent bias. Hence, Bias is a “freestanding” point of appeal and amounts to an error of law in that it is a breach of the rules of natural justice and contravenes Article 6 ECHR. Application is generally made for appearance of bias, the conduct and demeanour of the Judge.
20. Previously, the Court of Appeal had given further guidance in Locabail (UK) Ltd v Bayfield Properties Ltd (2000) IRLR 96, and In re Medicaments and Related Classes of Goods (No.2) (2001) 1 WLR 700. There can be actual bias or apparent bias. As far as the former is concerned where the allegation is that the judge or member of the judicial panel has some interest in the outcome of the application, the question is whether the outcome of the case could realistically affect the judge's mind. Any doubt should be resolved in favour of disqualification. Where the allegation is that the interest is derived from the interest of a spouse, partner, or other family member the link must be so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge himself. In the latter situation, apparent bias, the test is whether a fair-minded and impartial observer would conclude that there was “a real possibility, or a real danger, the two being the same, that the tribunal was biased”. (Per Lord Hope in Magill).
21. Since the promulgation of earlier authorities of law Human Right Act 1998 has come in existence in 2000. The House of Lords in Porter v Magill [2002] 2 A.C. 357 incorporated the spirit of HRA in the decision and formulated the test on whether a court or tribunal decision could be said to be influenced by either actual or apparent bias. Pill LJ cited above case in Lodwick v London Borough of Southwark [2004] EWCA Civ 306 CA at para 18 in determining bias is:
“Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased”.
22. Since then House of Lords promulgated its decision in Lawal v Northern Spirit Limited [2003] UKHL 35. The House of Lords offered further assistance in the speech of Lord Steyn. From the passage Mr. Davies, QC submitted the following principles emerge:
(i) the hypothetical fair-minded observer will adopt a balanced approach. He will be neither complacent nor unduly sensitive or suspicious;
(ii) the observer will consider whether there is a real possibility of subconscious as well as conscious bias;
(iii) the requirement that the observer “would” conclude that there was a real possibility of bias does not mean that it is necessary to show that the observer would “necessarily” take such a view. It is enough if it is “likely” that he would take such a view. In substance the “would” provision is to be satisfied on the usual balance of probabilities test.
23. It is, of course, not that there was bias (conscious, unconscious or subconscious), it is merely that there is “a real possibility” of such bias. Properly so understood the threshold is not very high (as, it is submitted, appears from actual decision of the House of Lords in Lawal). The reason is combination of increased public scepticism and the “indispensable requirement of public confidence in the administration of justice”- see Lawal at paragraph 22. Lord Steyn also cautioned about the existence of collegiate culture in the judicial system.
24. In Breeze Benton solicitor v Waddell [2004], an Employment Judge rejected the application in this way according to its extended reasons:
1. The award of costs to the applicants (in the previous case) related to “relatively modest amounts of money”.
2. Mr Reilly (the respondent) had done nothing to pursue his complaint to the Lord Chancellor's Department.
3. The matter had not been raised at an earlier interlocutory stage so that the allocation of the case might “avoid the appointment of this Chairman”.
4. The matter was raised for the first time on the first morning of the hearing.
5. The Judge was not sitting alone on the previous occasion but was a member of a tribunal constituted by three individuals and it was open to the two members on this occasion to dissent from the Judge's view, which was a “reasonable safeguard”.
25. The tribunal had applied the fair-minded observer test above from Magill (supra), as did the EAT in the instant case. However, the EAT came to a different conclusion. The EAT reviewed all the authorities and then summarised the effect as amounting to the following propositions:
1. that the test properly applied requires the tribunal to recuse itself if there is a real possibility of bias. If such a risk is found the tribunal is not entitled to balance against that risk considerations of prejudice to the other party resulting from delay;
2. that if in any case there is a real ground for doubt, that doubt should be resolved in favour of recusal;
3. that it is no answer to a recusal application to say that the chairman was only one of three members with an equal vote, given the important position of the legally qualified and presiding member of a tribunal of three members; and
4. unless he admits to the possibility of bias, the claim of the person asked to recuse himself that he will not be or is not partial is of no weight because of “the insidious nature” of bias.
26. Applying these principles to the facts, the Appellant concluded (at para.46) that the Judge ought to have recused himself for the following reasons:
“(a) There was no suggestion and no finding by the Tribunal that Mr Reilly's application subsequently for the Chairman to recuse himself was a tactical ploy on his part. On the contrary, the Tribunal accepted for the purposes of the application that Mr Reilly's fear was genuinely held.
(b) Mr Reilly's claims were to some extent corroborated by the complaint he had made subsequently to the Lord Chancellor's Department and, indirectly, to the Regional Chairman. We note that the Chairman himself has made no reference to the remarks in his statement responding to Mr Reilly's affidavit.
© Due to the insidious nature of bias, little weight could be attached by the Tribunal members to the Chairman's non-acceptance of Mr Reilly's allegations and to his statement that he was not and would not be partial.
(d) he mere fact that the Chairman felt it necessary to state expressly at para.19 of the reasons that he rejected Mr Reilly's allegations indicated the level of the dispute between the Chairman and Mr Reilly and rendered it inappropriate, in our judgment, that he should sit on the case.”
27. In Deman v Association of University Teachers, Mr D. Triesman, Mr B Everett, Dr. G. Talbot, Dr J. DeGroot [2005], HHJ McMullen QC recused himself stating that it was not appropriate for a judge of the EAT, subject to an unresolved complaint to the Lord Chancellor by Dr Deman to handle that party’s case. Breeze Benton applied. HHJ McMullen gave the following reasoning
27.1 On 17 September 2005 a letter was sent by Council for Ethnic Minority to the Registrar, copied to the Lord Chancellor. It is not on the record, because the Claimant is represented by solicitors. It indicated that an oral hearing listed before me should not take place because, in a recent direction, I had disposed of a number of appeals, which the Claimant sought to make.
27.2 In response, a letter was written on behalf of the Registrar indicating that the case would be constituted in front of me and an application would have to be made as a matter of urgency. On 26 September 2005, a letter was written by Council for Ethnic Minority to the President, and copied to the Lord Chancellor.
27.3 The letter, which extends for two pages, rehearses a complaint previously made against the President himself. The letter goes on to indicate that a complaint has been made to the Lord Chancellor about me, alleging unprofessional conduct and racial bias and hostility against Mr Deman. The principal basis is the finding against him in a number of matters pending before the EAT and in respect of an allegation that I accused him of picketing the EAT.
27.4 The solicitors on the record representing the Claimant, Hudgell & Partners, having been provided by the EAT with those two letters, written by Council for Ethnic Minority, made an application that it would be inappropriate for me to hear the application today. At that stage, the solicitors made clear that they were making no comment on any of the matters set out in the letters from Council for Ethnic Minority. On the basis of that, a letter was sent indicating that the Deputy Registrar had refused the application but it could be raised as a preliminary point at today’s hearing, as it has been.
27.5 Mr Davies, in one short submission, indicates without any comment upon the substance of the complaints to the Lord Chancellor, that while such a complaint is before the Lord Chancellor, I should not hear any application on behalf of the Claimant. He relies on Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2003] IRLR 538.
27.6 I also drew his attention to the judgment of Cox J in Breeze Benton Solicitors v Waddell UKEAT/0873/03. In that case, she considered whether a Chairman of Employment Tribunals should have recused himself in the light of, amongst other things, a complaint made to the Lord Chancellor about his conduct which was still pending. Her conclusion was that it was inappropriate for a number of reasons for the Chairman to have continued to hear the case and he should have recused himself. One of the matters, as found in paragraph 47 of her judgment was this.
“Secondly, the very fact that Mr Reilly had complained about the Chairman’s conduct made it inappropriate that the Chairman should sit. The significance of the complaint lay in the fact that it had been made and that the Chairman knew that he had complained and was aware of the specific allegations made about his conduct”.
27.7 I have been made aware today of the complaint, which is sought to be made against me. I understand that the complaint was made some time ago but while the Court of Appeal was seized of the matter, steps were no longer being taken. The Court of Appeal (para 1 above) refused leave to Mr Deman to appeal against my judgment and refusal to review it, dismissed his allegation of bias as totally without merit and imposed the civil restraint order. According to the letter, the complaint to the Lord Chancellor will now be re-activated; and so, I am in the same position as the Chairman in the Breeze Benton case.
27.8 It seems to me that given the very long procedural history of this case, if there is a possibility that the matter can be handled by another judge, it ought to be taken rather than any distraction be introduced into the merits of Mr Deman’s case by consideration of whether or not he is having a fair hearing. Because of the civil restraint order, if I were to direct that no further action be taken on this case at this Rule 3 hearing, I could not handle any application for leave to appeal and it would be the end of the road for Mr Deman’s claim. This case is at a very early stage and the only loser by vacating today proceedings, as Mr Davies points out, is Dr Deman himself, who will wait yet longer for a determination of the claims made originally 10 years ago.
27.9 I have paid careful attention to those three authorities, which deal with apparent not actual bias. Mr Davies has stressed that he does not make his submission upon the allegations of actual bias set out by Council for Ethnic Minority. It is by reference to the test for apparent bias:
“… whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” (Porter v. Magill [2002] 2 AC 359, paragraph 103, per Lord Hope of Craighead)
27.10 It seems to me that no harm will be done by my standing aside from this case. The Claimant feels that justice may not be done but equally, it could be said, I suppose, by the Respondent that with a complaint by Mr Deman to the Lord Chancellor hanging over me, I might seek to demonstrate my fairness by finding in his favour when I would otherwise not. For both those reasons, therefore, it seems to me that Mr Davies’ application should be accepted. I acknowledge that I have had no help because this is a hearing where no respondent appears under the rules, nor have I had the assistance of an advocate of the Court. I make up my own mind, guided by those authorities and the brief submission made by Mr Davies.
27.11 I will now pass this case to the President to decide which judge should hear it. I note that a complaint has been made against Judge Clark and Judge Pugsley and Mr Davies tells me he would make the same application. So I will order this case to be heard before a judge, which is not any of us. Mr Davies expressly volunteered, despite the terms of the letter from Council for Ethnic Minority, that no objection is taken to the President dealing further with Dr Deman’s matters, including this Rule 3(10) hearing.
28. The Lady Smith in Chris Project v Lara Hutt [2006] EAT adopted the same approach and remitted the case to a freshly constituted tribunal in respect that they were satisfied that the Chairman's comments were such as to give the impression that there was a real possibility of pre-judgment.
29. Recently, the Court of Appeal in Ansar v Lloyd TSB & others [2006] EWCA Civ 1462 has confirmed above approach although Ansar complaint was related to a CMD. In this case, complaint of bias was not upheld since Judge was only dealing with the Case Management issues as opposed to more serious matters involving determination of civil rights at a full merit hearing. Mr Justice Underhill wrongly relied on the above because he failed to make the distinction between making adverse comment an earlier decision and determine the Civil Rights of Dr Deman permanently denying him the right to pursue justice under section 33. Appellant invite the Court to read paragraphs 15-18 of his judgement.
30. As Lady Smith held in Drury v British Coal Corporation [2007] EWCA Civ 605, that this is one of the cases where any doubt must be resolved in favour of appellant. Recently, in D’Silva v UCU & Labour Party mafia [2009] she recused herself even without any application being made for her recusal even for a remote possibility of conflict of interest because she had been the Chancellor of Manchester Metropolitan University (MMU) although the appeal was against the University College Union. However, earlier she failed to do so in Deman v University of Manchester & others although Dr Deman was lay representative of Dr D’Silva and he had an ongoing claim of racial discrimination against the MMU.
31. Before the court can answer that question it must examine all the surrounding circumstances, and that must include any explanation proffered by the impugned judge, even where there is a conflict. The court is not at liberty to call witnesses for evidence and cross-examination to resolve any potential factual conflicts, but equally the existence of such conflicts is yet another issue to factor into any assessment of the question: whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, or rather would the same fair-minded observer, having considered the facts, and notwithstanding the explanation advanced, still consider there was a real danger of bias.
32. Hence, the Appellant/Claimant has to aver that a fair-minded observer, having considered the facts outlined above, would have concluded that there is a real possibility that the Court was biased and the decision should be set aside on this ground alone. The operation of bias would have been acute in cases where a Judge was expected to exercise his discretion judiciously.
33. It is no longer sufficient to just say that justice has been done or will be done; “justice must be seen to be done”. The overriding objectives require the Tribunal, above all, to deal with cases “justly” and “fairly”. The overriding objectives are widely regarded as implementing the intentions of Article 6 of Schedule 1 of the Human Rights Act 1998, which ensures RIGHT TO A FAIR TRIAL and states:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest or morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
34. On the question of the essential requirements of waiver, the court indicated that the litigant must act freely, and in full knowledge of the facts relevant to the decision whether to waive or not. The Court of Appeal went on to offer this advice to judges faced with the dilemma of when to recuse themselves on the basis of potential bias:
1. If there is any real as opposed to fanciful chance of objection being taken by a fair-minded observer, the first step is to ascertain whether or not another judge is available to hear the case. The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties.
2. Some time should be taken to prepare whatever explanation is to be given to the parties.
3. It is vital that the judge's explanation is either mechanically recorded or carefully noted so that there is no controversy about what was or was not said.
4. A full explanation must be given to the parties, detailing exactly what matters are within the judge's knowledge which gives rise to a possible conflict of interest and explaining why the problem had only arisen so late in the day. The parties should also be told whether it would be possible to assign the case to another judge.
5. The options open to the parties should be explained in detail. These options are to consent to the judge hearing the case, with the consequence that thereafter they will lose the right to object after the event. The other option is an application to the judge to recuse himself. In that situation the parties must be told that it is their right to object, it will not be taken amiss if the right is exercised, and that the judge will then rule on that submission. They must be told what the consequences will then be, whether the case will proceed if the judge declines to stand down, or if the judge does step down and there is no other court available, when the case will be heard.
6. The parties are to be given time to reflect, and if there are sources of available advice, for example from the CAB, they are to be directed to that source.
35. Hence, HHJ Underhill fell into error in that (a) he failed to address or address adequately the Claimant’s application for recusal due to an outstanding complaint to Office for Judicial Complaint and Police for perverting the course of justice, (b) he failed to allow to present particulars of application for appearance of bias, (c) he failed accurately to record grounds of appellant for recusal application, (d) he failed to properly consider the issue of apparent or actual bias raised by Appellant at the hearing and applied wrong test, (d) he completely highjacked the Defendants’ grounds for striking out and had substituted his own grounds for striking out, (e) he made prejudicial comments about the appellant and his lay representative organisation, the Council for Ethnic Minority, and (f) thereafter the conduct and demeanour of Mr Justice Underhill strongly suggested a strong case of appearance of bias.
36. The Claimant avers that a fair-minded observer, having considered the facts outlined above, would have concluded that there is a real possibility that Mr Justice Underhill appeared bias and he should have recused himself and the decision should be set aside on this ground alone. The operation of bias would be acute in this case where the HHJ Collin’s had to exercise his discretion.
hronology on merit:
37. As to the Fundamentals of this application for permission to proceed to judicial review:
37.1 the Appeal Decision that the Claimants seek to review is suitably summarised at paragraph 2 of the Defendants’ summary grounds but, in essence, the Appeal Decision date stamped 6 July 2006 gave permission for development on land next door to the First Claimant’s home (16-25 );
37.2 the Appeal Decision was produced following a hearing before the Defendant’s appointed planning Inspector that the Claimant did not attend, let alone make representations at;
37.3 the Claimant did not attend because she had not been notified of the date of the hearing, contrary to a legitimate expectation that she would be so notified (and a specific request to Greenwich LBC that she be notified [70]) responsibility for which lies with Greenwich LBC;
37.4 the circumstances in which the planning Inspector decided to proceed with the hearing in the absence of the Claimants, and other local residents, are not known to the Claimant;
37.5 the hearing having finished and the planning inspector having produced the Appeal Decision on 6 July 2006 the Claimants did not learn that any hearing had taken place, still less that the Appeal Decision had been produced, until late July 2006;
37.6 at that point CEM, on behalf of local residents, began to attempt to obtain a copy of the Appeal Decision by communicating with Greenwich LBC, the Planning Inspectorate and the local MP (see for example the letter of 31 July 2006 from CEM to Greenwich LBC requesting a copy of the Appeal Decision amongst other things [71, 92]);
37.7 None of the affected residents except Mr Sarton was inform of the date, place and time of the hearing, [84-86],
37.8 CEM and Mr Deman as interested parties contacted Greenwich LBC and Planning Inspector’s office and spoke to Mr Morris and Mr. Steve Small @0117 372 8000 as Planning Inspector Mr Watson was unavailable. Mr Small, a Quality Assurance Officer arrogantly told them that to go the court if they did not agree with the Inspector’s decision. When the claimants drew his attention to deal with the matter internally before going to the court he told them that there was no need to do this (Mrs Mayo-Deman & Mr Deman’s statement of facts paragraph 13 & 7[10, 113]).
37.9 no copy of the Appeal Decision was in fact sent until the beginning of September 2006 (the Claim Form gives a date 25th August 2006 as the date on which a copy was sent, the letter from CEM of 17 January 2006 to this Court gives the date of receipt as 11 September 2006-the precise date on which the Claimant herself received a copy is being checked but, in any event, six weeks from 6 July 2006 expired on 17 August 2006);
37.10 Thereafter the Claimant and CEM, acting in person, attempted to comply with the pre-action protocol for judicial review before issuing this Claim [76].
Legislative framework
38. The Defendant’s grounds of resistance summarises the relevant statutory provisions. For ease of reference extracts from the Encyclopaedia of Planning Law and Practice are attached. The legislative framework set by the Town & County Planning Act 1990 (“the Act”) is as follows:
By section 288 the Act provides that:
(1) If any person-
(a) is aggrieved by any order...
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action, on the grounds -
(i) that the action is not within the powers of this Act
or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section.
(3) An application under this section must be made within six weeks from...the date on which the action is taken.
(4) This section applies to any such order as is mentioned in subsection (2) of section 284 and to any such action on the part of the Secretary of State as is mentioned subsection (3) of that section.”
Section 284 provides that:
(1) Except in so far as may be provided in this Part, the validity of
…
(f) any such action on the part of the Secretary of State as is mentioned in subsection (3),
shall not be questioned in any legal proceedings whatsoever.
…
(3) The action referred to in subsection (ix) is action on the part of the Secretary of State of any of the following descriptions
…
(b) any decision on an appeal under section 78;
…”
Grounds
The Defendant’s summary grounds make a great many points. The Claimant will endeavour to deal with them in turn. Her case in a nutshell, though, is that the statute must be read such that time for commencing a statutory appeal under s.288 against the Appeal Decision does not begin to run until the Appeal Decision is notified to a person such as the Claimant, who on any view was never on notice of the hearing.
Anufrijeva
40. Historically the courts have interpreted “decision” within s.284(3)(b) as referring to the date on which the Secretary of State, here through the planning Inspector, actually dates the appeal decision. As opposed to the date on which that decision is notified to those concerned by it. Unsurprisingly the Defendant relies upon that historic case law (Griffith and Kent).
41. However, and as the learned editors of the Encyclopaedia tentatively suggest, the decision of the House of Lords in Anufrijeva [2004] 1 AC 604 requires that the historic case law be reconsidered. Anufrijeva concerned statutory provisions yet more restrictive in their Language than s.284(3)(b) with s.288(3) here, in that there the Secretary of State’s “determination” had effect, for the purposes of Ms Anufrijeva’s entitlement to benefits, from the time that it was “recorded” by the Secretary of State.
42. Lord Steyn, with whom a majority of their Lordships agreed, said this:
“Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice, That is a fundamental and constitutional principle of our legal system” [621].
43. The Claimant here is a person directly concerned by the Appeal Decision, in that she now faces development adjacent to her property that is likely to depress the value of her property and affect her peaceful enjoyment of her home. That is sufficient to place her within the principle enunciated by Lord Steyn and require that the language of s.284(3) of the Act be read such that there is no “action” until the Appeal Decision has been notified.
44. The Defendant may well complain that such a reading, required as it is to guarantee the Claimant’s constitutional right to access justice, must be rejected on policy grounds due to its potential to create uncertainty that it would create within the planning system. However, relief under s.288 is discretionary (“the High Court.. .may quash that order or action”. In cases where a beneficiary of an “action” has acted to their detriment and a claimant in the same position as our Claimant seeks to bring proceedings out of time then it would be open to the court to refuse relief on those grounds.
45. Here, as the Defendant explains, no work has started at the Appeal Site. Nor has Mr Deacon, the developer, joined in these proceedings.
ECHR
46. It is not necessary for the Claimant’s purposes to consider The position in terms of the ECHR. Their Lordships in Anufriejeva did not analyse the issue in those terms. However, if it assists the Court both Art I of the First Protocol and Art 6 are engaged by this proposed development.
47. As the Claimant explained in writing as long ago as 19 January 2005:
“We reside in the adjacent property 49A Reston Crescent. The proximity is so close that the garages of 49 & 49A are attached to each other. Any redevelopment would mean demolition of existing property, which would result in severe disruption in neighbourhood, pollution and would raise safety concerns.
An erection of four 3 storey terraced houses would block the natural light and invade the privacy of our family life. Perhaps, you would appreciate everyone is entitled to right of privacy of his/her family life under the European Law. All the houses in the immediate vicinity are two stories (sic) houses this would be totally out of keeping with the ambience of the area and zoning laws.
The erection of four three storey terraced houses would also substantially depreciate the value of our property due to neighbourhood effect given the fact, our house is the only detached house in the neighbourhood.” [49]
48. The effect on the Claimant’s property was even commented on by neighbours (Mr R Sarton and Mrs L Sarton of 7 Alderwood Road) in their own written representations:
“49a…will now find three houses having direct view to their kitchen and the move back from their boundary is negligible. I could better show you this than describe.
I hope that you can take into account the feeling this project has amongst local people who will be left here when he has gone and the large alteration to lives of 9, Alderwood, 49a Restons Cres...” [65a]
49. The Defendant concedes that whether or not a planning decision engages an individual’s civil right/s for the purposes of Art 6 ECHR is fact specific. Of relevance here is the first instance decision of Mr Justice Collins in the Fulham Football Ground case R (Adlard) v Secretary of State [2002] EWHC 7 (Admin), which includes analysis of Art 6 in the planning context onwards, in particular:
19. There is no doubt that Article 6 can be engaged by a planning or licensing decision which affects a third party. In Zandor v Sweden [ 18 RH 175 the applicant s land adjoined a waste tip and his water supply had been polluted by waste. A subsequent licence was granted to dump further waste and the applicant request that any licence should be conditional on precautionary measures being taken to ovoid pollution was rejected His only appeal was to the government and this was dismissed. The Court decided that there had been a breach of Article 6.1. The applicant’s rights were affected because he had standing in the licensing application and conditions were attached to the dumping permit of which he was beneficiary. There was a genuine dispute which was decisive for the applicant ‘s right to protection against pollution of his water and the ability to use water on one s own land for drinking was one facet of the property right which was clearly a civil right. The Swedish government raised the spectre of the need for a multitude of court remedies where there might be exposure to potential not just actual risk of damage. This was met by the proximity of and direct effect on the applicant land of any pollution of his water.
20. The need for the effect of any decision to be direct was spelt out in Daliner Schafroth v Switzerland [ 25 EHRR 597. The applicants in that case lived within 5 kilometres of a nuclear power station and were challenging a decision to permit a 10 percent increase in production and the extension of the operating licence for the power station. It was accepted that Article 61 could apply but only if the applicants were able to show that the operation of the power station exposed them to a danger which was specific, serious and imminent Only if the outcome of the proceedings in issue (the grant of the licence) were directly decisive of the right in question could Article 6 be involved In Athanassoglov v Switzerland [ 3] EHRR 372, a case involving the same power station, the Court confirmed its previous decision and made the further point (at paragraph 54 on p. that how best to regulate nuclear power was a policy decision for each Contracting State to take according to its democratic processes. The Court did not need to decide whether the existence of civil remedies for damage were established was sufficient to comply with Article 6.1.
21. It is necessary to identify a civil right which is directly affected. It is said that the right to use and enjoy one own properly is engaged and that that is a civil right Reliance is placed on what Lord Hoffmann in particular said in Alconbury [2001] 2WLR at p.1410). It must be remembered that the claimants in the Alconbury cases were applicants who were challenging the decision to call in or to ‘recover’ an appeal or to acquire land which was owned by them. Thus the rights of individuals to use, enjoy and own their land were the subject of the decisions in issue. A decision to grant planning permission to A will often affect B enjoyment of his property. For example, his view may be affected or his garden or house may be overlooked or the sunlight entering his garden or his house may be diminished. But I do not think that Lord Hoffmann or the House in Alconbury was considering or was intending to consider the effect on third parties and was not as it seems to me using the expression ‘use and enjoy’ in that wide context. Thus I am far from persuaded that the right asserted by the claimants are civil rights within the meaning of Article 6. 1 accept that if a direct effect on the value of the property can be demonstrated civil rights may be engaged. The civil right in question is the right of property which, following Zander v Sweden, clearly is a civil right Oltenberg v Austria [1995] 19 EHRR 524 is another example of an objector who was able to establish a violation of Article 61 where the noise generated by a rant of planning permission directly affected the market value of her own land and her right to enjoy it. But the right is a civil right because of the direct effect on the value of the land, and there is no evidence in the present case of any diminution in value of a property Further, it is very difficult ff not impossible to identify any civil right which could even arguably be affected in respect of the claimants who do not live sufficiently dose to the ground to be directly affected by the additional numbers and behaviour of fans, the problems of parking or the direct impact of the size of the new stadium..
22. However, lam prepared to assume the engagement of Article 61, at least in the case of some of the claimants..”
51. This part of the decision was not challenged above, where it was accepted by the Secretary of State that the Court of Appeal should proceed on the assumed basis that Article 6 was engaged, therefore we claimant is at loss about Justice Underhill’s criticism.
52. The position here is, of course, entirely different from that in Matthews (which predates Anufrijeva in any event), in that the claimant there knew well that the public inquiry had taken place and had, moreover, received the decision in good time, albeit he could not read it.
53. Mr Justice Underhill relies upon the House of Lord decision in Griffith v Secretary of State for the Environment [1983] 2AC 51. The facts of the above case are different and therefore can be distinguish from the above case on the following points;
(a) In the above case there was no failure of the Secretary of State or Inspector as to Notice of Hearing and knowledge of the decision. In the appellant’s case the Planning Inspector failed to give Notices to the appellant and so many other residents and interested parties. In fact, the majority appreciate the above concern,
(b) In those circumstances the appellant and/or interested parties would not have known the decision and its reasons without the sight of the decision. One cannot challenge something without the nothing for draconian consequences of costs.
(c) In fact, the Registry Office of the Court of Appeal and for that matter even Administrative refused to accept Appellant’s Notice or a Judicial Review application without a copy of the Order and decision. CEM was only assisting the First appellant and other residents therefore its knowledge of the Planning Inspector’s decision on 31st July 2006 is irrelevant.
(d) When the House of Lord decision was promulgated the decision in Griffith the Human Rights Act 1998 was not incorporated in the Domestic Law.
(e) The decision in Griffith was superseded by the later decision of the House of Lord in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604. In this case the Secretary of State had made no attempt to notify the appellant. Lord Steyn said in his speech, “The argument for the Home Secretary ignored the fundamental principle of our Law. The notice of the decision is required before it can have the character of determination of legal effect because the individual concern must be in a position to challenge the decision in the Court if he or she wishes to do so”. In the appellant case no notices of hearing was given therefore appellant and other residents could not attend. According to the Secretary of State, if an objecting party had not attended, he or she will not be informed of the decision. Therefore one cannot challenge the decision. This is not a question of public policy but institutionalisation of regimentation by majority rule. Certainly the intention of the Parliament was not to mischievously deny the public access to justice due to lack of notice of the date, time and place of hearing,
(f) Mr Justice Underhill accepts that if, the reasoning in Anufriheva is incompatible with Griffith only the House of Lords could decide that Griffith should be overturn. However Mr Justice Underhill kills that possibility by refusing the permission on somewhat erroneous grounds and wrongly assumed that the outcome of nay appeal to could be decision that this court was by Griffiths. His decision was based on the assumptions rather than on decidendi or ratio analysis.
53. Further Mr Justice Underhill erred in law in refusing permission on the ground of breach of Articles 6 & 8.
(a) Mr Justice Underhill says in his decision that it is not possible to construe s 288 in such a way as to permit Mrs Mayo-Deman to proceed in the present case and that Mr Burton did not explicitly seek relief on the question of possible declaration on incompatibility under the European convention. Mr Justice Underhill completely turned around counsel’s submission in skeleton when he says in paragraph 12(2) of his decision that the First appellant’s statement of facts raises, what are essentially aesthetics and amenities objections. This is incorrect. While referring to neighbourhood externalities in paragraph 24 of her statement of facts she says as follows:
“I reside in the adjacent property 49A Reston Crescent. Due to close proximity any redevelopment would mean demolition of existing property, which would result in severe disruption in neighbourhood, block natural lights, invade the privacy of family life, cause pollution and raise health and safety concerns. Since all four houses backside will be facing backyard, no privacy will be left and also the front view of the house will be blocked as new dwellings will be erected parallel to Alderwood Road rather than at a 45 degree angel from Alderwood Road & Reston Crescent as situated right now. It would also increase the congestion of traffic and endangering life and safety of children walking home from School. In fact, the demolition work alone would affect the normal life of the residents and School children”[14].
(b) Hence, he wrongly applied the analogy from Aldar v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 7 Ortenberg v Austria (1994) 19 EHRR24 to appellant’s case and failed to address breach of article 6. The appellant’s counsel did raise the issue of invasion of privacy from overlooking into kitchen, garden and living room, and nuisance due to traffic congestion, proximity to Nursery and risk to safety due to increase in accidents due to over development as recognised by a local MP but found no place in M Justice Underhill’s decision.
© Despite the Sullivan J. decision in Mathews v Secretary of State fort the Environment, Transport and the Regions [2002] JPL 717, Mr Justice Underhill ignored that party wishing to challenge under s 288 would have received a reasoned decision (para 37).
(d). Further he has completely ignored the counsel submissions and appellant’s and interested parties’ statement of facts identifying breach of appellant’s civil rights. For example, privacy of family life due to overlooking into kitchen, living room and garden besides diminished value of the property due to over development.
(e) The appellant with limited to means of living did not have benefit of the legal advice and the Council for Ethnic Minority is a voluntary organisation with no funds which heavily dependant on services of lay volunteers.
54. If the Claimants proceed past this permission stage then they will also obtain evidence from an estate agent or similar to make good her case that the value of her property will be affected by the proposed development. However, before expanding further expenses we have obtained an interim report of a marketing expert [58-59 of Appellant’s Notice].
55. Appellants understand the Legal system is institutionally racist and totally rigged and refusal of permission to appeal is a forgone conclusion given support of some members of the judiciary to Zionist Labour Party Racist mafia. In fact, despite Mr Deman represented by a leading counsel at the Court of Appeal we have witnessed Lord Justice Baker readout a prepared judgement from pink sheets of papers in the Court of Appeal presided by Lord Justice Law, formerly worked with the treasury (was shocking to judicial conscience). Appearance of a leading counsel on behalf of appellant made no difference to them. If you have already made a decision please send us in post. However, a refusal from the Court of Appeal is necessary before proceeding to the European Court of Human Rights.
Conclusion
56. Permission is respectfully sought. If the court is persuaded by the merits of the Claimants’ case as to the quashing order sought then it will, of course, be contended that this claim for judicial review should be treated as a s. 288 statutory appeal following the principles set out in the Thurrock case.
On behalf of the First Appellant & CEM 23 February 2010
