An interesting (and unusual) decision on tribunal bias has been put on the EAT website today.
In Breeze Benton solicitors v Weddell, the EAT held that there was an appearance of bias if a chairman, who was alleged to have been critical of a litigant in proceedings a year earlier, sat again in another case involving that litigant.
The tribunal chairman had, it was said by Breeze Benton, criticised the firm (and awarded costs against it) fifteen months earlier when one of the two partners appeared in person to defend an unlawful deductions claim. The chairman did not accept the firm's recollection was accurate (although from the EAT's description, the firm's conduct undoubtedly warranted criticism). The firm did not appeal at the time against the costs order, but complained in an incorrectly addressed letter to the Lord Chancellor's department which they did not chase up.
Fifteen months later, the same firm was again before the tribunal for a 10-day hearing. It was allocated to the same chairman who, before the parties came into the room, anticipated the point and raised it with the regional chairman, who said it was not possible to reallocate the case to another chairman without adjourning it for some months. The Respondent then formally applied for the chairman to recuse himself on grounds of apparent bias. The tribunal unanimously refused, partly on the basis that the two wing members could outvote the chairman if necessary, and partly on other grounds.
The EAT, on existing authority, held that it is no answer to a recusal application to say that the Chairman is only one of three members with an equal vote, given the important position of the legally qualified and presiding member of a tribunal of three members (para. 44(3)).
But of significance, the EAT also held that "the very fact that [the Respondent] had complained [to the Lord Chancellor's Department] about the Chairman's conduct made it inappropriate that the Chairman should sit..." (para. 47). This approach must be questioned. If correct, it means that the vexatious litigant (and, indeed, unions and large companies who regularly appear in cases in the same region) can 'cherry-pick' their chairmen by complaining about those whom they do not like appearing in front of. This approach is dangerous as it can be easily abused: if a chairman decides (say) three consecutive cases against a local large employer, will the mere fact that that employer then complains (whether on good grounds or not) mean that the chairman has to recuse himself from hearing future cases? Surely not.