Zahedi v McGee [1995] UKEAT 465_94_1206
[1], not being a party or associated with a party to the proceedings, but knowing the issues, reasonably gain the impression of bias? The reasonable and disinterested lay observer has been likened in other aspects of the law to "the man on the Clapham omnibus" or the "officious bystander."" We do not believe that this analysis differs in any way from the subsequent authoritative principle set out by Lord Goff in the leading decision of R v Gough . We do not regard it as necessary to set out the relevant circumstances here in any detail, since they are largely common ground, and are nearly all to be found in a lengthy affidavit sworn by the appellant on 13th October 1994 in compliance with the direction made by this Employment Appeal Tribunal on 27th September 1994. We have also borne in mind the Chairman's careful comments on that affidavit and on the Notice of Appeal which are contained in the bundle before us. Suffice it to say that the evidence includes the following relevant circumstances as we regard them as being: Mr Bedford was the senior partner in a large and well-known firm of solicitors in Bristol (the firm).[2]Between 1984 and 1992 the appellant was a client of the firm and entrusted it with a number of different contentious and non-contentious matters with which he was concerned. One of those matter fell directly under Mr Bedford's area of specialty "family law" and thus was dealt with by him personally on behalf of the appellant.[3]In 1988 the appellant was unfortunately charged with a serious criminal offence of assault, and his defence to that matter was conducted by the firm. He was convicted of a lesser charge of assault. The appellant was dissatisfied with the way in which his defence was conducted.[4]There were disputes between the appellant and the firm with regard to the competence of the services provided to him by the firm and also somewhat acrimonious correspondence with regard to the amount of the fees charged, and more particularly the delay on the part of the appellant in paying such fees. We cannot emphasise too strongly that we are in no way concerned with the rights and wrongs of those disputes. However, it is a matter of record that fairly strong words were used on each side.[5]The appellant's private and public affairs from time to time attracted quite a lot of adverse publicity in the local press for obvious reasons. In addition to the above circumstances which we have mentioned and which we regard as relevant, we are satisfied on the evidence that there was an accidental meeting between the appellant and the Chairman in the lavatory at the Industrial Tribunal, during the short adjournment at Bristol, during which the appellant sought to remind the Chairman of the fact that they knew one another, and that the Chairman had acted for him in the relationship of solicitor and client in the past. We cannot, contrary to the submission of the respondent, attribute any sinister motive on the part of the appellant to that encounter on the evidence before us. In those circumstances we have reached the unanimous conclusion that the continued sitting by Mr Bedford as Chairman, did give rise to a real danger of bias, so that we should not allow the decision of the Industrial Tribunal to stand. In our judgment, a reasonable man or disinterested observer present at the hearing, knowing the facts we have mentioned, would have gained the impression of bias. He would reasonably have thought that the Chairman, as a solicitor whose firm had dealt with the affairs of the appellant over some years, might have gained an adverse view of the honesty and credibility of the appellant, and so might well have come to regard with disfavour his case on the disputed issues of fact before the Tribunal. We appreciate of course that normally it might well be said that, far from being biased against his past client, a solicitor/judge might well regard his client/party's case with unfair favour, unfair that is to say the other side. But in the unusual circumstances here, which we have sought to outline above, we have concluded that there is material, which when viewed objectively by the disinterested observer, would have caused him to gain the impression of a bias which might operate against the appellant. Accordingly, we do not consider it necessary or appropriate to make any finding on the second ground of appeal. We do repeat however, what we have said in argument, namely, that there appears to us to be a great deal to be said for the decision of the Industrial Tribunal that the dismissal was unfair due to lack of consultation, and, on the other hand, a very considerable force in the submission of the appellant that the reality may be that consultation would have made no difference to the outcome in all the circumstances. However, all those matters will have to be considered afresh in the light of our judgment by a differently constituted Tribunal. Nothing we say should influence one way or the other, of course, their decision on the matters which fall to be argued in due course before them. For those reasons we allow the appeal, and remit this particular matter to be retried before a fresh Tribunal. We also recommend that this matter be heard as early as possible. A joint application for legal aid taxation for the respective parties was granted.