Fahim-AL-Mustafiz

Barrister-at-Law, of Lincoln’s Inn

P.G.Dip, University of the West of England, UK
LLB (Hons), University of the West of England, UK
Accredited civil and commercial mediator, (ADR-ODR International)

Rule Against Bias – Note

Introduction:
The principle of Natural Justice dictates that in order to ensure procedural fairness, the maxim, nemo judex
in causa sua ought to be followed. It means that no one should be a judge in his own cause. The rules
against the biasness of a decision maker stems from a limb of the principle of Natural Justice, which focuses
on ensuring that decision maker is free from bias or impartiality (D. Galligan, Due Process and Fair
Procedures). The rules propagate that decision makers should concentrate on delivering a judgement that
is free from motivation of favouring or disfavouring any party to the proceedings. It further seeks to
eliminate arbitrariness in decision making by requiring those who are, or who may appear to be, partial to
rescue themselves or step-aside (P. Leyland and G. Anthony, Administrative Law, 7th Edition).

Impartiality and Bias:

A decision maker is impartial if they are not inclined to decide one way or the other before hearing from
the people who ought to be heard (T. Endicott Administrative Law, 5th Edition). In reality, it is difficult, if
not impossible, to maintain absolute impartiality, especially for government officials who are acting in
response to set government policies. As such, the law seeks to strike a balance between the need for
impartiality and the reality that the delivery of such impartiality is difficult.
On the other hand, biasness is simply unfair partiality. In an influential definition of ‘bias’, Lord Leggatt in
Bubbles & Wine Ltd. v Lusha said that:
“Bias means a prejudice against one party or its case for reasons unconnected with the legal or
factual merits of the case…”
Although, impartiality is not a general requirement of lawful decision making, a biased decision is unlawful
at common law, notwithstanding whether it is made by a judge or an administrative official. As per Lord
Mansfield in Serafin v Malkeiwicz, biased decision will be quashed for lack of due process if a decision
maker had:

 An improper interest in the outcome;

 A relation to one party to a dispute that made it unfair for the decision maker to decide between the
parties; or
 A pre-conceived opinion.
Analysis: It is possible that a decision maker, despite having some nexus to one party, is still able to
maintain his impartiality. However, Lord Mansfield has opined that a man may judge impartially even in
his own cause, but we must go upon general principles.

Types of Bias:
Biasness of a decision maker can be classified into actual and apparent bias.

Page 1 of 6
Fahim-AL-Mustafiz
Barrister-at-Law, of Lincoln’s Inn
P.G.Dip, University of the West of England, UK
LLB (Hons), University of the West of England, UK
Accredited civil and commercial mediator, (ADR-ODR International)

Actual Bias:
It can be either pecuniary (financial) or non-pecuniary. However, cases relating to actual bias are difficult
to prove due to strict evidential standards. A decision maker is actually biased if:

 He is influenced by partiality or prejudice in reaching the decision; or

 He is actually prejudiced in favour of or against a party (Re Medicaments).
Whether a decision is vitiated by such bias is a question of facts, and Kerr J, in the case of Re Foster’s
Application stated that a claim of actual bias will succeed only when supported by the clearest evidence.
Although, when a decision maker is found to have actual bias, he will be automatically disqualified (K.
Malleson, ‘Safeguarding Judicial Impartiality’).
Apparent Bias:
Even if it cannot be proved that a decision maker was actually biased, it will be sufficient to show that there
is a possibility that he might have been biased. As such, the appearance of bias on the part of a decision
maker is a valid ground to quash the concerned decision. The development of this limb of the law emerged
from the underlying common law policy, as reiterated by Lord Hewart in Ex parte McCarthy:
‘justice should not only be done, but should manifestly and undoubtedly seen to be done’

Types of Apparent Bias:

Apparent bias can be present in the form of: (i) pecuniary; or (ii) non-pecuniary interest.
Apparent Bias (Pecuniary Interest):
The courts have long insisted that any pecuniary interest should disqualify a decision maker. In case of
Dimes v Grand Junction Canal, the HL reversed a decision of Lord Chancellor Cottenham since he held
shares in a company that was a party to the proceedings. Blackburn J in the case of R v Hammand stated
that any pecuniary interest, however small, will be sufficient to disqualify the decision maker.
Apparent Bias (Non-Pecuniary Interest):
In an unprecedented case of Ex parte Pinochet Ugarte (No. 2), the HL had reversed its own previous
decision in order to preserve absolute impartiality of the judiciary.
Facts: Amnesty International was given leave to intervene in the proceedings before the HL. It advocated for the
punishment of Pinochet Ugarte for various crimes committed during his regime as the ~Head of the government of
Chile. Unknown to the representatives of Pinochet Ugarte, one of the law lords, Lord Hoffman, was in fact an unpaid
director and chairperson of Amnesty International Charity Limited (AICL), a company under the control of Amnesty
International which was formed to carry out activities related to the charitable parts of Amnesty International. Lord
Hoffman did not disclose his links with Amnesty International, had no financial interest in the outcome and was
not a party to the proceedings. Lord Browne Wilkinson was of the view that the substance of the matter is that
Amnesty International and AICL are all various parts of an entity or movement working in different fields towards
the same goals. This along with the fact that Lord Hoffman did not also disclose his wife’s link was enough to
automatically disqualify Lord Hoffman and hence, the matter was reheard before a differently constituted Appeal
Committee.

Page 2 of 6
Fahim-AL-Mustafiz
Barrister-at-Law, of Lincoln’s Inn
P.G.Dip, University of the West of England, UK
LLB (Hons), University of the West of England, UK
Accredited civil and commercial mediator, (ADR-ODR International)

Decision: In this case, it was held by the HL that although there was no allegation of any actual bias against Lord
Hoffman, the earlier decision would nevertheless be non-maintainable.

Academic opinion: Under such circumstances, the judges would normally have to rescue themselves, or disclose the
position to the parties, where they had an active role as trustee or director of a charity which was closely allied to, and
acting with, a party to the litigation (S. Breyer, R. Stewart, C. Sustein and M. Spitzer, ‘Administrative Law and
Regulatory Policy, Problems, Text and Cases, 5th edition’).

In the case of Locabail v Bayfield, the court expressed a contrasting view.

Facts: The judge in this case was the senior partner in a large firm of solicitors. His firm was acting in litigation for
the enforcement of financial claims and of bankruptcy against the defendant’s former husband. The judge did not
know of this until during the hearing. The judge immediately disclosed that connection, stating that he knew no more
of that litigation (litigation related to defendant’s ex-husband) than had appeared from the press cutting which was
presented by the defendant during the hearing. Neither party sought an adjournment nor an objection was raised and
the hearing continued. Subsequently, the judge gave the judgment in favour of the plaintiffs and thereafter, the
defendant applied for the judge to disqualify himself from further involvement in the case and to set aside his
judgement on the ground of bias.

Decision: The judge stated that his firm’s engagement to client’s involved in litigation against defendant’s former
husband had not crated conflict of interest as to qualify him from dealing with cases and he accordingly refused her
application. This is a contrasting case to Ex Parte Pinochet Ugarte (No. 2) because the judge did not step down
although there was apparent bias.

The view that while everything will depend upon facts and the nature of the issue to be decided, no sensible
objection could be based on factors such as religious persuasion, ethnic or national origin, gender, age,
class, means or sexual orientation of the judge.
It was doubted that whether a challenge could ever succeed on the basis that an adjudicator had a particular
social or educational background, employment history, political affiliation, professional association or
expressed in views in textbooks, lectures or articles or in the pas received instruction from a party. However,
a history of personal friendship or animosity between the judge and a member of the public associated with
the case may disqualify the judge.
Analysis: It appears that the Courts were liberal in finding bias in the case of Ex Parte Pinochet Ugarte
(No. 2). However, considering the factor of experience and professionalism in dealing with bias, the Court
has taken a much-reserved stance in the case of Locabail v Bayfield.

Presumption of Biasness
If a decision maker has either improper interest, or wrong sort of relation to a party or a pre-conceived
opinion about the case, the law presumes that the decision maker will be influenced by it (T. Endicott
Administrative Law, 5th Edition). That is, without any proof that a decision resulted from the unfair interest
or relation or opinion, the law deals with the situation as it that were proved. When the law presumes that
there is a bias on the part of a decision maker, he is required to rescue himself from being the judge in that
matter, or else the decision will subsequently be quashed for his failure to do so.

Page 3 of 6
Fahim-AL-Mustafiz
Barrister-at-Law, of Lincoln’s Inn
P.G.Dip, University of the West of England, UK
LLB (Hons), University of the West of England, UK
Accredited civil and commercial mediator, (ADR-ODR International)

A presumption of bias cannot be rebutted – that is, if a decision is challenged on the ground of a real
possibility of bias, the decision cannot be rescued by proof that the decision maker was actually being
perfectly fair-minded (T. Endicott Administrative Law, 5th Edition). As Lord Mansfield has opined, we
must go upon the general principle.

Tests for Biasness:

The English Courts have developed three tests for the presumption that a decision was biased, which are:

 Gough test
 Strasbourg test; and
 Porter test.
Gough test
There has been considerable debate concerning the test for determining the biasness of a decision maker.
The Court attempted to clarify the law in the case of R v Gough by stating that:
‘the test should be whether there was a real danger of bias on the part of the decision maker in the
sense that he might unfairly regard with favour or disfavour the of the party under consideration
by him.’
In terms of the perspective from which bias should be viewed, it was not necessary, as per Lord Goff, to
formulate the test in terms of the reasonable man, because the court had to ascertain the relevant
circumstances from the evidence that might not be available to the ordinary observer.
This test was criticised by the courts on the ground that it tended to emphasise the court’s view of the facts
and gave inadequate attention to the public perception of the incident being challenged (Webb v R).
Strasbourg test:
The Human Rights Act 1998 requires the United Kingdom (UK) courts to take into account decisions of
the ECtHR. In the case of Gregory v United Kingdom, the ECtHR had formulated the test for biasness,
which is:
“whether the applicant’s fear as to a lack of impartiality can be regarded as objectively justifiable”
In light of this test, Lord Phillips in Re Medicaments held that the Strasbourg jurisprudence requires the
courts to pay more attention to what an observer would think, and not just to whether there really was a
danger of bias.
Porter test:
As per the present test for biasness, as reformulated by the court in the case of Porter v Magill, the
presumption of biasness will apply considering:
‘whether a fair-minded and informed observer, having considered the facts, would conclude that
there was a real possibility that the tribunal was biased’

Page 4 of 6
Fahim-AL-Mustafiz
Barrister-at-Law, of Lincoln’s Inn
P.G.Dip, University of the West of England, UK
LLB (Hons), University of the West of England, UK
Accredited civil and commercial mediator, (ADR-ODR International)

In this standard formulation, ‘biased’ has the meaning – a judge is biased if he is deposed to decide against
a party regardless of the relevant consideration. Accordingly, bias will be presumed if the fair-minded and
informed observed would think that there is a possibility of it (T. Endicott Administrative Law, 5th Edition).
Analysis: It can be argued that all the three tests are the same – if there is no real danger of bias, an
applicant’s fear as to a lack of impartiality is not objectively justifiable, and a fair-minded and informed
observer, having considered the facts, would conclude that there was no real possibility that the tribunal
was biased.
Academic opinion: The courts see the change from Gough to Porter as shifting the emphasis from how
things are to how things look (T. Endicott Administrative Law, 5th Edition).

Automatic Disqualification and Waiver:

There is no official list of the grounds for automatic disqualification of judges due to biasness. However, a
judge will be automatically disqualified if he either has a substantial financial interest in the outcome of a
case (Locabail v Bayfield) or he has any personal connection to any party to the case (AWG Group Ltd. v
Morrison). Automatic disqualification is appropriate where the judge’s involvement in a decision would
reflect badly on the integrity of the system, regardless of what the parties to the dispute might think about
it. If a judge is not automatically disqualified, it is still unlawful for his or her to decide that matter if an
interest, relation, or opinion makes it unfair to do so.
However, under the following circumstances, there will be automatic disqualification:

 If the pecuniary interest is not personal to the decision maker then the matter will fall to be considered
as a challenge on the ground of favour (R v Rand) and not on the ground of bias;
 The pecuniary interest cannot be too remote (R v McKenzie);
 Acts of Parliament may allow justices of the peace, as an exception, to make orders in cases despite of
having public functions/involvement in a case (as per Justices Jurisdiction Act, 1742);
 There may be cases where the adjudicator cannot be dispensed due to substitution not being possible,
since no one else is empowered to act. Natural Justice then has to give way to necessity (Dimes v Grand
Junction Canal).
 Where the judge’s interest is derived from the interest of the spouse, partner or other family member,
the link must be so close and direct that both of their interests are indistinguishable (Locabail v
Bayfield).
On another note, after being fully informed about the biasness of a decision maker, if none of the party
object, and thereby waives their right to such objection, no disqualification of the said decision maker will
take place (JSC BTA Bank v Ablyazov). However, if the nature of the biasness is inherently objectionable
and warrants an automatic disqualification, such biasness will be unwaivable (Locabail v Bayfield).

Page 5 of 6
Fahim-AL-Mustafiz
Barrister-at-Law, of Lincoln’s Inn
P.G.Dip, University of the West of England, UK
LLB (Hons), University of the West of England, UK
Accredited civil and commercial mediator, (ADR-ODR International)

Administrative Bias:
The law on bias in relation to judicial decision making is similar to administrative decision making.
Although, a primary difference between the both is that in administrative decision making, the adjudicator
has technical expertise over his departmental matters, whereas a judge is only meant to apply the law based
on facts and evidence presented to him (T. Endicott Administrative Law, 5th Edition). However, there are
two problems in administrative decision making:

 Two-body problem: Unlike the judicial proceedings where there are three bodies – plaintiff, defendant
and judge – in an administrative proceeding, there are only two bodies – appellant and the public body.
Example: A has applied for his driving license. After the rejection of this application, he needs to appeal
to the same body that is responsible to issue the license. The lack of this independence does not
necessarily create bias, but certainly generates a bad attitude towards the appellant (Cooper v
Wandsworth).

 Policy problem: If an aggrieved individual prefers an appeal against an action of a public body, it is
given that the grievance has generated from the said public body applying its own policy. In such
appeals, the adjudicator will already have a pre-conceived notion to uphold the policy and rules of the
institution, notwithstanding the problems it may have.

Effect of Human Rights

As per Article 6 (1) of the Human Rights Act, 1998 there must be an independent and impartial tribunal
established by law. This requirement cannot be satisfied where the court or tribunal is biased. It is clear
from the Strasbourg jurisprudence that this requirement does not need to be satisfied at every stage of the
decision-making process provided that there are provisions for appeal rights or judicial review to a judicial
body that has full jurisdiction and provides the guarantees of Article 6 (1) (R (Alconbury Developments
Ltd.)). This whole process will be assessed to determine whether the requirement of Article 6 (1) was
upheld. The key question to be addressed is whether the decision-making process guarantees the minimum
standards of independence and impartiality.

Page 6 of 6