Court of Appeal rejects apparent bias claim against Peter Smith J

16/06/16

The Court of Appeal today gave judgment in Harb v Prince Abdul Aziz [2016] EWCA Civ 556. After a trial, Peter Smith J had found that the Prince (the son of the Saudi King) had agreed at a meeting at the Dorchester Hotel to pay Ms Harb (who was previously married to the King) £12m and convey two Chelsea properties to her in return for her retracting certain allegations she had made against the Prince’s father, the King. It was argued on behalf of Prince Aziz that the appeal should be allowed and the claim dismissed.

After the trial, but before judgment was given, Lord Pannick wrote an article in The Times, for which he is a columnist, criticising the conduct of Peter Smith J in another case, Emerald Supplies Ltd v British Airways [2015] EWHC 2201 (Ch) where that judge had ultimately recused himself after a controversial hearing in court subsequent to the loss of the judge’s luggage on a flight operated by British Airways. After Lord Pannick’s article, Peter Smith J telephoned the head of Lord Pannick’s chambers and thereafter wrote to the head of chambers in terms which gave rise to an allegation that Peter Smith J was guilty of apparent bias against all members of those chambers. As counsel   acting for Prince Aziz were members of those chambers, it was a further ground of appeal in Harb that the judgment should be set aside on grounds of apparent bias.

The Master of the Rolls, giving the judgment of the court, did not accede to the submission on behalf of Prince Aziz that the court should allow the appeal and dismiss the claim, but did hold that the deficiencies in the judge’s reasoning and judgment were such as to require a retrial. The court held that the judge failed to examine the evidence and the arguments with the care that the parties were entitled to expect and which a proper resolution of the issues demanded.

However, the court rejected the allegation of apparent bias. Whilst strongly critical of the letter written by the judge to the head of chambers, the court held that on the facts the informed and fair-minded observer would regard it as fanciful to suggest that, having heard the evidence in the case and expressed provisional views prior to the publication of Lord Pannick’s article, the judge could have changed his mind thereafter as a result of reading the article. 

The judgment appears here.