Was the senior district judge and chief magistrate (the judge) who granted Uber a licence to operate in London biased because of her husband’s financial relationship with Uber? This question came before Lord Burnett LCJ and Mr Justice Supperstone (the appellate judges) in the recent case of United Cabbies Group v Westminster Magistrates’ Court  EWHC 409 (Admin).
The law: presumed and apparent bias
Presumed bias arises where a judge has a direct pecuniary or proprietary interest in the outcome of a case and therefore he or she is automatically disqualified, whether or not that interest gives rise to a reasonable apprehension of bias (see R v Bow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte (No.2)  1 AC). The question is not whether the judge has some link with the party involved in a cause before the judge but whether the outcome of that cause could, realistically, affect the judge’s interest. Where the judge’s interest is said to derive from the interest of a 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’ (Jones v DAS Legal Expenses Insurance Co. Ltd  EWCA Civ 1071).
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The test for apparent 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’ (Porter v Magill  2 AC 357). When applying the test ‘it will very often be appropriate to enquire whether the judge knew of the matter relied on as appearing to undermine his impartiality, because if it is shown that he did not know of it the danger of its having influenced his judgment is eliminated and the appearance of possible bias is dispelled’ (Locabail (UK) Ltd v Bayfield Properties Ltd  QB 451). However, no attention will be paid to any statement by the judge as to the impact of any knowledge on his judgment approved by the court for handing down (Locabail).
United Cabbies Group
The judge granted an operating licence to Uber to operate in London for a period of 15 months. One of the principal grounds upon which The United Cabbies Group (UCG) challenged the decision in judicial review proceedings was that the decision was tainted by actual or apparent bias because of the judge’s husband’s financial relationship with Uber, which had been revealed by the Guardian after the judgment was delivered. The Guardian article reported that the judge’s husband was a former director and now consultant of a company which provided services to Qatar Investment Authority (QIA); QIA has a significant financial investment in Qatar. The judge later wrote a letter to the parties confirming that she was unaware that QIA was an investor in Uber and that she had checked with her husband and he did not know either. She also confirmed that she would not sit on any future Uber cases.
UCG contended that the judge’s husband’s financial interest in Uber was, by virtue of the marital relationship, that of the judge and the judge’s knowledge of the existence of the interest was irrelevant. Therefore, UCG contended that the judge was automatically disqualified from hearing the matter. However, the appellate judges rejected this contention because the facts did not show that there was a link between the judge’s interest and the interest of her husband which was ‘so close and direct’ as to render the interest of her husband indistinguishable from her interest. The husband could not be said to have a financial interest of the Uber parent company and through it to Uber in London. As a consultant there was no doubt that the husband received remuneration from the consultancy firm which in turn received income from QIA. Also, there was no doubt the QIA hoped to receive benefit from growth in Uber. But the link between Uber’s global prosperity and the husband’s remuneration was ‘tenuous, to say the least’. The appellate judges noted that the husband had not advised QIA regarding Uber and therefore ‘in those circumstances it is difficult to see how he could have a direct financial interest in the outcome of the appeal’.
UCG also argued the existence of apparent bias and relied on the judge’s subsequent decision to recuse herself from future Uber cases. Again, the appellate judges disagreed with UCG and observed that at the time the judge wrote her letter she knew about the matters raised by the Guardian which she did not know at the time she granted the licence. Further, the appellate judges dismissed UCG’s contention that a judge was obliged to not only demonstrate that he had no knowledge but he could not reasonably be expected to be aware of those facts. It was held that this aspect of UCG’s case was inconsistent with the settled principles.
The appellate judges held: ‘The duty of inquiry suggested on behalf of UCG finds no support in authority. It would be inconsistent with the approach in Locabail and would impose an unnecessary and onerous burden on judges. We can foresee considerable practical difficulties if a judge has to research whether his or her immediate family members may have any link with any party in every case over which they preside. We see no warrant for it.’
As well as helpfully reiterating the general principles on bias, the decision in United Cabbies Group illustrates the approach the court will adopt when considering allegations of bias based on a judge’s interest and that of his family members who may have a connection to parties in the proceedings. In order for a challenge to be successful, the facts must, as established by Locabail, show that the link between the judge and the interest of his family member is ‘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’. The decision in United Cabbies Group also reinforces that it is the actual and not the presumed knowledge of the judge that is relevant when determining apparent bias.
Masood Ahmed is associate professor at the University of Leicester and a member of the Civil Procedure Rule Committee