Zuma's Choice Pet Products Ltd & Anor v Azumi Ltd & Ors [2017] EWCA Civ 2133

[2017] EWCA Civ 2133Case No A3 2017 0227
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2017] EWHC 45 (IPEC)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Mr Recorder Campbell QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/12/2017
Before
LORD JUSTICE PATTENLORD JUSTICE FLOYD
Between
(1) Zuma’s Choice Pet Products LimitedAppellants(2) Zoe VanderbiltAppellant(1) Azumi LimitedRespondents(2) John WallaceRespondent(3) Boult Wade TennantRespondent(4) Rainer BeckerRespondent
Ms Vanderbilt in person for in personMr Simon Malynicz QC and Ms Georgina Messenger (instructed by Gowling WLG) for RespondentsHearing Hearing date: 21 November 2017
Judgment Approved
[1]This is an appeal from the decision of Recorder Campbell QC not to recuse himself from hearing an application in the Intellectual Property Enterprise Court (“the IPEC”) for summary judgment in a group of actions involving allegations of trade mark infringement and groundless threats of trade mark proceedings. The appellant, Ms Zoe Vanderbilt, who is the defendant in the infringement proceedings and the claimant in the groundless threats proceedings, contends that the Recorder should have recused himself because he was a practising barrister in the same chambers as counsel for the respondents. She also complains that a “private and confidential” letter which she alleges was wrongly included in the bundles before the court created a situation in which a perception of apparent bias was inevitable.[2]On the appeal Ms Vanderbilt represented herself, assisted by a McKenzie friend. The respondents were represented by Mr Simon Malynicz QC and Ms Georgina Messenger.

The factual chronology

[3]On 9 June 2015 Azumi Limited, which runs a number of Japanese restaurants in cities around the world, including one in Knightsbridge in London, commenced proceedings against Ms Vanderbilt and her company, Zuma’s Choice Pet Products Limited (ZCPP), (“the trade mark action”). The conflict arose because Azumi’s restaurants are named “ZUMA”, and it was alleged that ZCPP were selling and offering for sale pet food products under and by reference to the signs “Dine in With Zuma” and “Zuma”. Ms Vanderbilt counterclaimed in the trade mark action for groundless threats of trade mark proceedings. She also brought two further actions for groundless threats, on 17 June 2015 and 31 July 2015 respectively, against various parties, including Azumi and its trade mark attorneys (“the groundless threats actions”).[4]The application which ultimately came before Recorder Campbell QC was launched on 10 October 2016, and sought summary judgment in favour of Ms Vanderbilt in all three actions on the issue of groundless threats. The application was first considered on the papers by HHJ Hacon, who dismissed it by his order of 18 October 2016 with no order as to costs. He considered that, in each of the cases, a defence of justification had a sufficient prospect of success for it to be determined at the trial.[5]What followed was something of a procedural muddle. Ms Vanderbilt sought to appeal the order of HHJ Hacon of 18 October to this court, but it was pointed out in a letter of 16 November 2016 from the Court of Appeal office that she enjoyed a right of renewal to an oral hearing in the High Court, and that she should pursue that avenue before launching an appeal to the Court of Appeal. As was pointed out in R (on the application of MD Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 194; [2012] 1 WLR 2422, where a right to renew at an oral hearing exists, it is recognised that that right should first be exercised before seeking permission to appeal, absent some special circumstances.[6]Accordingly on 22 November 2016 Ms Vanderbilt issued a further application before the IPEC renewing her application for summary judgment to an oral hearing. It appears that this application was initially sent to the Court of Appeal by the IPEC. Ms Vanderbilt was notified of this on 24 November and she immediately objected that her application was not an appeal, but the oral renewal application which the Court of Appeal office had indicated was the appropriate procedural step. On 13 December 2016 the Court of Appeal office wrote to the IPEC referring to its previous direction of 16 November 2016 and returning the papers, but they did not reach the IPEC immediately. There was accordingly some unfortunate delay whilst Ms Vanderbilt’s renewal application papers were returned from the Court of Appeal to the IPEC for which neither Ms Vanderbilt nor the respondents were responsible.[7]On 6 January 2017 HHJ Hacon received a letter or witness statement from Ms Vanderbilt dated the previous day (“the 5 January statement”) containing allegations in connection with the handling of the case against Mr Malynicz QC (leading counsel for Azumi), Mr Sevier (the solicitor at Gowling WLG with the conduct of the case for Azumi and the trade mark attorney defendants) and Mr Wilcox, who is the clerk to HHJ Hacon at the IPEC. The 5 January statement had been sent to the judge in an envelope marked “Private and Confidential”.[8]I should say straight away that, as all practitioners know, it is improper for a litigant to attempt to correspond with the court on a “private and confidential” basis. Communications having any relevance to a case being conducted inter partes need to be sent to the other side no later than the time when they are sent to the judge. Unless there are special reasons to do so, and there were none here, the court does not take any step adverse to a party without allowing that party the opportunity to be heard. If it is possible to do so, a judge who receives such a communication should return it unread, explaining shortly to the litigant the impropriety of sending unilateral correspondence. That, of course, may not always be possible.[9]In the present case HHJ Hacon did read the material he was sent by Ms Vanderbilt in the 5 January statement. He decided in the first instance not to send the 5 January statement to the respondents. Instead he took the course of preparing what was obviously a carefully considered note dated 10 January 2017 (“the Judge’s Note”) which was sent to Ms Vanderbilt, and to the respondents. In the Judge’s Note he was able to deal with and dismiss the complaints made by Ms Vanderbilt without calling for comment by the respondents. The Judge’s Note stated:
“Having carefully read Ms Vanderbilt’s witness statement I can see no basis whatever for any wrongdoing either by my clerk, Mr Sevier or Mr Malynicz.”
[10]HHJ Hacon said that he would have left the matter there were it not for the fact that Ms Vanderbilt was a litigant in person who he believed had not correctly understood the procedural steps which had occurred. It is now clear that the judge took that course because all Ms Vanderbilt’s complaints were based on various procedural steps which had been taken by the court or the respondents to which Ms Vanderbilt attributed the most sinister motives. He went on to seek to set Ms Vanderbilt’s mind at rest concerning those steps and the progress of her summary judgment applications. Having done so, he directed that those applications should come on before a different judge “pursuant to the direction of the Court of Appeal”. (In fact the Court of Appeal office had simply directed that the matter should be dealt with in the High Court: it had not specified that a judge other than HHJ Hacon should hear it.) The Judge’s Note also indicated that, as HHJ Melissa Clarke would be hearing the trial of the action, he would ask his clerk whether it was possible for the application to come before her. He asked the parties to liaise with his clerk to arrange a suitable date, whether before HHJ Clarke or another judge. He concluded:
“Particularly bearing in mind that Ms Vanderbilt sent the 5 January Statement in confidence, I intend to make no further comment about it. I have no doubt that I should not take any further steps in response to it.”
[11]In accordance with HHJ Hacon’s direction in his Note, the applications were listed for 16 January 2017 at 2 pm before Recorder Campbell QC.[12]Ms Vanderbilt did not agree with the direction that the matter be listed before Recorder Campbell, and embarked on correspondence with the court in which she objected to this direction. She did not rely at this stage on any allegation of apparent bias, because she had not yet become aware of the matters on which she chose subsequently to rely. Instead she argued(a) that the applications should be heard by HHJ Hacon because he was familiar with the matter, and(b) that the Court of Appeal office had indicated to her that the oral renewal should be by a judge of co-ordinate jurisdiction which included HHJ Hacon but not, in her (incorrect) view, a recorder. HHJ Hacon communicated via his clerk that he did not accept these objections and directed the hearing to go ahead. This led to further allegations being made against Mr Wilcox, resulting in a direction that, in future dealings with Ms Vanderbilt, Mr Wilcox should be replaced by his line manager. Ms Vanderbilt also made repeated requests for a meeting to be arranged between her and HHJ Hacon “without notice”. Not surprisingly, it was explained to her that a private meeting with a judge was not a possibility and that the hearing before Recorder Campbell would go ahead.[13]On 9 January 2017 Ms Vanderbilt wrote to Mr Witts and Mr Harris, respectively the Chairman and a partner of the respondents’ solicitors, Gowling WLG, repeating the allegations of serious misconduct against the same three individuals (“the Gowling letter”). The Gowling letter was marked “private and confidential”, but headed in the three actions the subject of the dispute with Azumi. Ms Vanderbilt has explained that the allegations contained in the Gowling letter were in all material respects the same as those communicated to HHJ Hacon in the 5 January statement, and which he had found to be lacking foundation.[14]The bundles prepared for the hearing before Recorder Campbell were to contain, by what appeared at the time to be common accord, the Judge’s Note, which of course revealed the existence, but not the detail, of the allegations by Ms Vanderbilt against Mr Malynicz, Mr Sevier and Mr Wilcox. Ms Vanderbilt now says before us (and for the first time) that this was a mistake and she did not want the recorder to see the Judge’s Note. The bundles were also to contain correspondence. The bundles prepared by the respondents included the Gowling letter. The letter is also included in the bundles before us. It can no longer sensibly be described as confidential, if it ever could have been. The letter lists a number of “crimes” alleged to have been committed against Ms Vanderbilt in the course of the proceedings. Neither party sought to address us on the detail of the allegations, and so it is not necessary for me to set them out. I should however make crystal clear that, although framed in these dramatic terms, the allegations were all concerned with procedural steps taken by the respondents or the court which Ms Vanderbilt considered to have been improperly or incorrectly carried out. It was for that reason that HHJ Hacon’s note had so carefully explained to Ms Vanderbilt the procedural steps which had occurred with her application, and why none of it suggested any wrongdoing by anyone.[15]In the late afternoon of Friday 13 January 2017 Ms Vanderbilt discovered that the recorder allocated to hear her applications, Recorder Campbell QC, was in the same chambers as Mr Malynicz QC. She had not been informed of this fact between the date of HHJ Hacon’s direction on 10 January and her own discovery of it. She also found out on that day that the Gowling letter had been placed in the respondents’ bundle for the hearing, notwithstanding that it was marked “private and confidential”. However she did not communicate to her opponents or the court any objection to either of these circumstances at that stage.[16]When the case was called on at 2 pm on the following Monday, 16 January, the recorder immediately made the following statement:
“There is one thing I should say before either of you say any more. I should say that I actually know Mr Malynicz, Mr Sevier and Mr Wilcox on a personal basis. You may not know that, but I am telling you now. Mr Malynicz is a colleague of mine in chambers and has been for some years. I have worked with Mr Sevier on two cases over the past five years and I worked with his firm on others. I know Mr Wilcox in my capacity as an IPEC deputy judge. I have seen in the papers there are serious allegations against the three individuals but not Mr Sevier’s firm. I also see that HHJ Hacon has given his response to these. It seemed to me that none of these allegations have any relation to this particular application we are making today, as neither of you is asking me to do anything about it and neither of you have mentioned them in your respective skeleton arguments. So, me having told you that, you have any comments to make on that?”
[17]The recorder was not literally correct to say that the allegations had not been mentioned in the skeleton arguments. The respondents’ skeleton had made reference to the existence of the allegations and invited the recorder to read, for “context”, the Gowling letter as well as the Judge’s Note and the subsequent correspondence between Ms Vanderbilt and the court. However, neither side had sought to place any reliance on these allegations in the argument about whether there should be summary judgment on the groundless threats claims.[18]Following the recorder’s statement, Ms Vanderbilt immediately replied that she wanted to apply for Recorder Campbell to recuse himself. Ms Vanderbilt had come equipped with a witness statement (her 18th witness statement in the proceedings) in support of such an application. She had not notified this application in advance to the respondents, or served this witness statement on them with the consequence that the respondents had not come armed with evidence or relevant authority to deal with it. The respondents did not, however, apply for an adjournment, and the judge accordingly proceeded to hear argument on the application.[19]The 18th witness statement of Ms Vanderbilt was dated 16 January 2017 and made the following points: i) There was a real possibility of bias due to the fact Recorder Campbell QC was a practising barrister and a close business associate of the respondent’s counsel Mr Malynicz QC; ii) Conscious or intended bias was disclaimed; iii) Mr Malynicz had introduced into the bundles the Gowling letter which was a complaint sent on a private and confidential basis and which was “not concerned with summary judgment for groundless threats”. There had been no reason to put this letter into the bundles unless it was being used for the purpose of influencing the recorder to feel in a negative way towards Ms Vanderbilt. Mentioning the Gowling letter would give the impression that the respondents were being candid and that Ms Vanderbilt was making unsubstantiated allegations; iv) The allegations were “currently under investigation”; v) The respondents ought to have given Ms Vanderbilt more notice of the fact that Recorder Campbell and Mr Malynicz were in the same chambers.

The judgment of Recorder Campbell QC

[20]The recorder did not consider that he ought to recuse himself. As to the inclusion of the Gowling letter in the bundles the recorder said this:
“The fact that Mr Malynicz and those instructing him may have put a particular letter in the bundle does not, in my judgment, go to bias. It may be an attempt to influence me, but I can easily put the letter out of my mind. Judges are well used to putting things out of their minds.”
[21]The recorder also expressed concern at the fact that the respondents had not told Ms Vanderbilt about the connection between Mr Malynicz and himself, and that she had had to discover it for herself. This is a point which Ms Vanderbilt has pursued in her argument before us, but there is nothing in it. She had sufficient notice of the relevant facts to launch her recusal application, and she did so. The relevant facts either show that the recorder should have recused himself or they do not. Ms Vanderbilt was unable to identify anything she would have been able to say which she was not able to say before the recorder if she had been given longer notice.[22]The recorder then turned to what he described as the key point, namely whether the existence of the connection would give rise to a perception of bias. He directed himself by reference to the well-known test in Porter v Magill [2001] UKHL 67:
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the tribunal was biased.”

The recorder also referred to what Sales LJ said in Watts v Watts [2015] EWCA Civ 1297:

“The fair-minded and informed observer would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges and would understand that those standards are part of a legal culture in which ethical behaviour is expected and high ethical standards are achieved, reinforced by fears of severe criticism by peers and potential disciplinary action if they are departed from.”
[24]At paragraph [15] the recorder said:
“It seems to me that if allegations had been made which involved, for instance, allegations of crime, fraud or matters of that nature, then I would have recused myself. However, as the application has … transpired, it has been put purely and simply on the basis that I share a professional chambers with Mr Malynicz.”
[25]So the recorder concluded at paragraph [16]:
“In my judgment, the notional, fair-minded and informed observer would know about the professional standards which are applicable, both to practising members of the bar and barristers who service part-time deputy judges. Such a person who is, as I’ve said, not unduly sensitive or suspicious, would see no reason for me to recuse myself in this case. I therefore decline to do so.”

Events subsequent to the judgment under appeal

[26]Following the application before Recorder Campbell QC, the actions have been tried before HHJ Melissa Clarke on 7-8 February 2017. She gave judgment on 24 March 2017. Judge Clarke found that the use of the signs ZUMA and DINE IN WITH ZUMA infringed Azumi’s trade mark, but that the use of the company name ZCPP did not. This meant that Ms Vanderbilt succeeded to a limited extent on her threats counterclaim and one of her threats actions. An application by Ms Vanderbilt for permission to appeal to this court was refused by me on the papers on 13 June 2017. On 18 October 2017 I refused her application to reopen the appeal under CPR 52.30. In the light of those developments Ms Vanderbilt accepts that she can achieve no more by this appeal than the setting aside of the recorder’s order, which included an order for costs against her. There would plainly be no purpose in holding a further summary judgment application before a different judge, and Ms Vanderbilt did not suggest that this should occur.

The recusal application on this appeal

[27]At the outset of the appeal Ms Vanderbilt applied for me to recuse myself from hearing the appeal. Her grounds for seeking my recusal can be summarised as follows: i) I was the judge who had refused both her application for leave to appeal and her application to reopen the appeal under CPR 52.30; ii) It was wrong for a judge who had refused an application on paper to deal with the subsequent application to re-open the appeal; iii) It was wrong that, in the course of dealing with those applications, I had not upheld her objections to the judgment of HHJ Melissa Clarke, in particular the objection that Judge Clarke had incorrectly formulated the test for infringement of trade mark under section 10(3) of the Trade Marks Act 1994 and under Article 9(2)(c) of the Trade Marks Regulation; iv) The material which it was necessary to consider on this appeal was the same as that considered on those two applications, or at least overlapped with it, so that I would not be able to deal with this appeal fairly.[28]At the conclusion of her argument we informed Ms Vanderbilt that we considered that I would not be justified in recusing myself from hearing her appeal, and that we would include the reasons for doing so in our judgments on the appeal. I must now give my reasons for making that decision.[29]The mere fact that a judge has decided applications or issues in the past adversely to a litigant is not generally a reason for that judge to recuse himself at further hearings: if that were not the case, the same judge could not make two successive interim decisions in a case without risking accusations of bias. It would make it impossible for there to be a designated judge assigned to the hearing of complex cases with multiple interim applications. The fair-minded and informed observer does not assume that because a judge has taken an adverse view of a previous application or applications, that he or she will have pre-judged, or will not deal fairly with, all future applications by the same litigant. For example, in JSC BTA Bank v Ablyazov [2012] EWCA Civ 1551 a designated trial judge who had previously held a litigant guilty of contempt (in the course of which he had made adverse credibility findings against the litigant) was held by this court to be justified in not recusing himself from the hearing of the trial, where there was little overlap between the issues in the contempt proceedings and the trial.[30]The position might well be different if in the past the judge has expressed a final, concluded view on the same issue as arises in the application. However, the involvement which I have had with this case in this court has not required me to form a view on any of the issues which arise for decision on this appeal. The issues which I have dealt with have been concerned with whether there are grounds for challenging the judgment of HHJ Melissa Clarke on the substantive issues of trade mark infringement, and whether there were grounds for re-opening the appeal which met the demanding threshold in CPR 52.30. None of that can be relevant in any way to whether, at the earlier stage, Mr Recorder Campbell QC should have recused himself from hearing the summary judgment applications which were before him. I need hardly add that the fact that Ms Vanderbilt disagrees with the outcomes of her application for permission to appeal, and of her application to re-open the appeal, has no bearing on whether I should recuse myself from hearing this appeal. The same applies to her view that a judge who has refused permission to appeal should not determine an application to re-open the appeal.

The appeal

[31]I can therefore come, at last, to the arguments on the appeal itself. Ms Vanderbilt’s arguments are helpfully summarised in her supplementary skeleton. Firstly, she relies on the placing of the Gowling letter into the hearing bundle without her authority. The letter was irrelevant to the issues to be addressed in the hearing, but had potential to be damaging to her in the way it was used. Secondly, she relies on the failure of the respondent’s legal team to disclose that Recorder Campbell shares chambers with Mr Malynicz, when they had this information from 10 January 2017, the date the hearing was arranged. I have already explained why this point has no substance. Thirdly, she relies on the fact that Mr Malynicz shares chambers with Recorder Campbell.[32]In her oral submissions Ms Vanderbilt argued that the judge had recognised in paragraph 15 of his judgment that he should recuse himself if allegations of fraud had been made. Such allegations had indeed been made in the Gowling letter and it therefore followed that the judge should have recused himself. She also made some criticism of the recorder’s subsequent judgment on the summary judgment application, but they amounted to no more than a disagreement with his reasoning, and they clearly cannot support an allegation of apparent bias. Finally Ms Vanderbilt referred us to Lesage v MauritiusCommercial Bank [2012] UKPC 41, a case in which the Privy Council directed a retrial of a case involving allegations of fraud against a defendant on the grounds that the court had received a privileged letter from the defendant.[33]On behalf of the respondents, Mr Malynicz submits that the mere fact of his membership of the same set of chambers as the recorder cannot itself amount to the appearance of bias. Likewise there was nothing in the fact that the Gowling letter had been placed in the bundle. Ms Vanderbilt had been apparently content for the Judge’s Note to be placed in the bundle, so the fact that serious allegations were being made against the three individuals would be known to the judge. In addition Ms Vanderbilt had been content for her applications to be tried by HHJ Hacon, whom she had expressly informed of the allegations. Indeed she had argued strongly that HHJ Hacon should hear the applications. Given that there was nothing in either component of Ms Vanderbilt’s case, there could be nothing in the combination of the two components.

Assessment

[34]I start by emphasising the status of the allegations in the 5 January statement and the Gowling letter by the time the matter came before the recorder on 16 January. By that time the allegations had been the subject of careful judicial consideration by HHJ Hacon and had been dismissed as being without any foundation. As he explained, they could be seen as such once the procedural occurrences in the litigation were properly explained. The allegations had been considered by him to be so clearly without foundation that he could dismiss them without calling for comment from the respondents. Ms Vanderbilt did not suggest that HHJ Hacon was not entitled to do so.[35]It is true to say that Ms Vanderbilt maintains that her allegations are still under investigation, but it is difficult to see what she means by this. It may be that she meant that she had not received a response to the Gowling letter, but Gowling needed to do no more than point to the Judge’s Note which was issued the following day. There was no suggestion before Recorder Campbell of any external or other investigation into the alleged wrongdoing, and there is none even now.[36]Accordingly, it seems to me that the circumstances which have a bearing on the suggestion that the judge was biased are the following: i) The recorder was, when he was not undertaking his judicial functions, a practising barrister in the same chambers as counsel for the respondents. ii) Ms Vanderbilt’s allegations against the respondents’ representatives and the court were all connected with prior steps in the proceedings. iii) Those allegations had all been carefully considered by HHJ Hacon and dismissed as being without foundation. iv) The recorder was aware of those allegations having been made and HHJ Hacon’s dismissal of them from the Judge’s Note. v) The recorder was also aware of the detail of those allegations from the Gowling letter. vi) The allegations were irrelevant to the issues which the recorder was being called on to decide. vii) The recorder was alerted to Ms Vanderbilt’s contention that the Gowling letter might put her in a poor light, and was aware that he should therefore guard against the possibility that this might somehow influence him.[37]Mr Malynicz is correct that it has been decided at this level that a part-time judge’s mere membership of the same chambers as one of the advocates in a case he is deputed to try is not in itself a reason for him to recuse himself. In Smith v Kvaerner Cementation Construction Ltd (General Council of the Bar intervening) [2006] EWCA Civ 242; [2007] 1 WLR 370 the recorder deputed to try a case was the head of the chambers to which both counsel in the case belonged. Lord Philips of Worth Matravers CJ, who gave the judgment of the Court of Appeal in which Sir Anthony Clarke MR and May LJ joined, explained at paragraph 17 that the fact that counsel and the recorder were in the same chambers of itself gave rise to no appearance of bias:
“Judges in this jurisdiction, whether full time or part time, frequently have present or past close professional connections with those who appear before them and it has long been recognised that this, of itself, creates no risk of bias nor, to those with experience of our system, any appearance of bias – see eg Nye Saunders and Partners v Alan Bristow (1987) 37 BLR 92; Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113; Taylor v Lawrence [2003] QB 528 and Birmingham City Council v Yardley [2004] EWCA Civ 1756. At the same time we can see the force of Mr Speaight's submission that changes in the way that some chambers fund their expenses and the fact that counsel can now act under a conditional fee agreement mean that, in some cases at least, there may be grounds for arguing that a Recorder should not sit in a case in which one or more of the advocates are members of his chambers. Indeed we understand that the Bar Council is currently considering the implications of conditional fee agreements in this context.”
[38]It is not suggested that any of the factors considered in the second part of this passage apply in this case. Nevertheless, Ms Vanderbilt argues that this is a case in which there is more that would disturb the fair-minded observer than the mere fact of common membership of chambers. The inclusion of the Gowling letter in the bundle was designed to put her in an unfavourable light, making the risk of bias, she says, inevitable.[39]I cannot accept this argument. Firstly, there is often material in the bundles before a judge which is not strictly relevant to the issue which has to be decided. If the material is irrelevant the judge will not rely on it. If he is alerted to the fact that it is irrelevant he will be particularly careful to put it out of his mind. In this connection professional judges are not the same as lay juries, whose decision-making may be contaminated if they are exposed to irrelevant or inadmissible material. The Lesage case is of no assistance in this regard because, as Lord Kerr pointed out in giving the opinion of the Privy Council, the judges had not even considered whether it was appropriate for them to continue to hear the case after learning of privileged material in the letter which was likely to have an impact of the way in which the court viewed the defence. There was nothing from which the informed observer could deduce that the judges were alert to the need for vigilance against being influenced by the contents of the letter.[40]Secondly, the fact that the allegations contained in the Gowling letter and the 5 January statement had been made and rejected was part of the procedural history of the case by the time it came before the recorder. The allegations were not privileged. There was no basis on which the recorder could be prevented from knowing about this history. Moreover, if the applications had been heard before HHJ Hacon, which was Ms Vanderbilt’s preferred option, then he would have known about the allegations (because she had told him about them).[41]Thirdly, and perhaps importantly, the fact that the recorder was made aware of the allegations which had been rejected has nothing to do with bias. The fair-minded and well-informed observer would understand the matters I have referred to and conclude that the judge would be capable of resolving the summary judgment application fairly without being influenced by the fact that Ms Vanderbilt had made allegations of wrongdoing which had been rejected.[42]It follows that neither the recorder’s association with Mr Malynicz, nor the fact that the allegations in the 5 January statement and the Gowling letter were made known to the recorder by being placed in the bundle, considered individually, can give rise to an appearance of bias.[43]I do not accept, however, that it is correct to look at each of Ms Vanderbilt’s allegations individually and conclude that if there is nothing in them individually there can be nothing in them in combination. This is not how the fair-minded person would view the matter overall. It is necessary to consider whether the fair-minded observer would nevertheless consider it wrong for a judge who was connected with an advocate (by being a barrister in the same chambers) to decide a case in which allegations of impropriety have been made against the advocate, even where those allegations do not arise for his decision. This way of considering the case does not focus on the fact that the recorder was told about the allegations by their being placed in the bundle, but on the impact on the fair-minded observer of the combination of the facts which I have summarised above.[44]I would be extremely reluctant to lay down a general rule that a judge from the same chambers as the advocate should always recuse himself from a case where the advocate has been accused of some form of conduct of which the litigant complains. That would provide the easiest of routes for a litigant to disrupt the listing of cases before deputy judges in specialist areas such as intellectual property and TCC work, where deputy judges are frequently chosen from amongst the small cadre of specialists in the field. It is, unfortunately, a common occurrence that litigants make accusations against their opponents and their representatives which turn out on examination to be unfounded or based on misconceptions about law or procedure. I do not think that the fair-minded observer is so sensitive as to think that any allegation of this kind, no matter how ill-conceived, gives rise to a possibility of bias. However, the issue of recusal is acutely fact sensitive, and it is not difficult to think of cases on the other side of the line where the fair-minded observer would consider that such a situation did give rise to a real possibility of bias. In the present case the fair-minded observer would know and understand that the allegations in question had been the subject of careful judicial scrutiny and rejected. They were based on misunderstandings of court procedure, as the judge had explained, and disposed of without the need for comment from the respondents. The idea that in those circumstances the fair-minded observer would think the judge in some way pre-disposed against the maker of the allegations because of his chambers association with the accused advocate is, I think, an unreasonable one.[45]I must deal finally with Ms Vanderbilt’s point based on paragraph 15 of the recorder’s judgment, where he said that he would have recused himself if allegations had been made which involved crime or fraud. Ms Vanderbilt reads this paragraph as indicating that the judge was unaware of the nature of the allegations which she had made against Mr Malynicz and others, which she had described as allegations of serious criminal misconduct. I do not agree that that is the correct interpretation of the paragraph. The judge was, I think, explaining that if the allegations in the applications which he was called upon to decide had involved inter-partes allegations of fraud or crime, he would have thought it appropriate to recuse himself, presumably because of the serious reputational consequences of his decision for the individuals concerned. He was not seeking to include in this passage a characterisation of the allegations Ms Vanderbilt had made in the Gowling letter, which he had said in his statement at the outset of the hearing that he had read, and which he described as “serious”. The position so far as those allegations was concerned was that “HHJ Hacon has given his response to these” and that “none of these allegations had any relation to this particular application we are making today, as neither of you is asking me to do anything about it.”[46]It is clear that the recorder was operating on the basis that the allegations were historical, unfounded and irrelevant to anything he had to decide. He was alert to the need not to be influenced by them. I do not therefore think that Ms Vanderbilt can build anything on paragraph 15 of the recorder’s judgment.[47]It follows that the facts relied on by Ms Vanderbilt are not sufficient either individually or in combination to give rise to a real possibility of bias in the eyes of the fair-minded observer. If my Lord agrees, the appeal will be dismissed.[48]I agree.

Cited in 13 later judgments

and 4 more of the most senior