EASTERN CARIBBEAN COURT OF APPEAL
IN THE COURT OF APPEAL
 THE ATTORNEY GENERAL
 DIRECTOR OF PUBLIC PROSECUTIONS
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mde. Louise Esther Blenman Justice of Appeal
The Hon. Mr. Mario Michel Justice of Appeal
Mr. Warren Cassell for the Appellant
Ms. Sherasmus Evelyn, on behalf of the Attorney General, for the
2020: June 23;
Interlocutory appeal — Application to strike out appeal — Whether
notice of appeal vague or in general terms — Whether notice of appeal
disclosed reasonable grounds for bringing appeal — Appeal against
refusal of application for recusal — Apparent bias — Whether learned
judge erred in refusing recusal application — Whether fair-minded
informed observer would conclude that there was real possibility of
bias — Whether learned judge ought to have recused himself given his
knowledge and prior involvement in matter — Whether learned judge
prejudged or predetermined claim — Judicial oath — Weight to be
attached to judicial oath in context of recusal application — Approach
to be taken by judge where there are doubts as to need for recusal —
Whether inconvenience, delay and costs are relevant considerations in
determining whether judge ought to be recused
The appellant, Keston Riley, was charged with and pled guilty to fraudulent
evasion of duty, following which he was sentenced by a learned judge to a
term of imprisonment. Riley successfully appealed his conviction to the
Court of Appeal, following which the Director of Public Prosecutions sought
to appeal to the Privy Council. Upon his release from prison, Riley filed a
fixed date claim seeking damages and declaratory relief from the State,
flowing from the circumstances surrounding his successful appeal against
conviction. The damages claim was set down for hearing before the same
judge who presided over Riley’s criminal matter.
During the course of an unrelated criminal matter, the learned judge
remarked in open court, in relation to Riley’s criminal matter, that
‘hopefully the Privy Council will get it right’, the implication being that
the Court of Appeal was wrong in quashing Riley’s conviction and sentence.
In light of his comment and prior involvement in the criminal matter, Riley
applied to the learned judge to recuse himself from hearing the damages
claim on the basis that he would not bring an impartial mind to bear on the
matter. The learned judge delivered what he referred to as an ‘interim
decision’ on the matter, by which he refused to recuse himself from hearing
Being dissatisfied with the judge’s decision, Riley appealed, alleging, in
the main, that the learned judge erred in law by refusing to recuse
himself. The respondents applied to strike out the notice of appeal arguing
that the grounds of appeal were vague or general in terms and did not
disclose any reasonable grounds for bringing the appeal. The respondents
further resisted the appeal on the grounds that the judge’s prior
involvement in the matter and his remarks made in open court would not
cause the fair-minded and informed observer to conclude that there was a
real danger that the judge was biased.
- dismissing the application to strike out the appeal; allowing the appeal;
setting aside the decision of the judge not to recuse himself; ordering
that a different judge is to be assigned to conduct the hearing of the
matter; awarding costs to the appellant to be assessed by a master if not
agreed within 21 days, that:
- Striking out is a severe sanction which ought not to be lightly
employed. In this case, the subject of the appeal is made clear from the
contents of the notice of appeal and the other material before the Court.
Accordingly, the grounds advanced by the respondents for striking out the
appeal are unmeritorious and would not conduce to the overall fairness of
the proceedings and the wider interests of justice.
HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global
Management Ltd and Anor
 UKSC 64 applied;
Real Time Systems Limited v Renraw Investments Limited and Ors
 UKPC 6 applied.
- A judge should not sit to hear a case in which the fair-minded and
informed observer, having considered the facts, would conclude that there
was a real possibility that the judge was biased. An appellate court is
well-positioned to assume the vantage point of a fair-minded and informed
observer and make such an assessment. The Court has to ascertain all the
circumstances and ask whether those circumstances would lead to the
conclusion that there was a real possibility that the judge was biased.
Otkritie International Investment Management Ltd and Ors v Mr George
 EWCA Civ 1315 applied; Mr AshleyDobbs v Triodos Bank NV  EWCA Civ 468 applied;Shaw v Kovac and Anor  EWCA Civ 1028 applied; Beard Winter LLP v Kersasp Shekhadar  OJ No. 3257
(QL) applied; Virdi v Law Society  EWCA Civ 100
applied; Helow v Secretary of State for the Home Department 
1 WLR 2416 applied; Harb v HRH Prince Aziz bin Fahd bin Abdul Aziz  EWCA
Civ 556 applied; Morrison and Anor v AWG Group Ltd and Anor  EWCA Civ
6 applied; Resolutions Chemicals Limited v H Lundbeck A/S
 EWCA Civ 1515 applied; National Assembly for Wales v Condron  EWCA Civ 1573
- Prior involvement and knowledge does not automatically disqualify a
judge from hearing a matter. Critically however, a judge must not
predetermine or prejudge the matter, or form or give the impression that he
or she has formed a firm view adverse to the credibility of a party prior
to hearing the evidence. The judge’s recusal ruling clearly demonstrates
that he was satisfied that the Court of Appeal erred in quashing the
conviction; he knew all the evidence; he had reviewed the incriminating
evidence against Riley and, as the judge who presided over the criminal
matter, he was waiting to put things right in the damages claim. The
fair-minded and informed observer would recognise that the learned judge
would have approached the matter with a closed mind or would not have
brought an objective mind to bear on the claim.
Stubbs v The Queen
 UKPC 30 applied; Steadman-Byrne v Amjad and Ors
 1 WLR 2484 applied; Costello v Chief Constable of Derbyshire  EWCA Civ
381 applied; Arab Monetary Fund v Hashim  6 Admin LR
- Where there is real doubt as to the presence of apparent bias, that
doubt should be resolved in favour of recusal. In the present case, the
learned judge left open the possibility of reviewing his decision not to
recuse, asserting that it was an interim decision to be kept under review,
and that he will encourage further argument as to actual bias if he or the
parties sense his mind is closing unfairly as the case develops. In these
circumstances, the judge ought not to have refused the recusal application
and ought to have resolved any doubts as to the presence of bias on his
part, in favour of recusal.
Locabil (UK) v Bayfield Properties Ltd
 QB 451 at 472 considered; Re Medicaments and related Classes of Goods (No.2) 
ICR 564 considered; Morrison and Anor v AWG Group Ltd
 EWCA Civ 6 considered; Wewaykum v Canada 2003 SCC
45 considered; Resolutions Chemicals Limited v H Lundbeck A/S 
EWCA Civ 1515 applied.
- In the context of apparent bias, much weight has been placed on the
judicial oath of office and the fact that professional judges are trained
to act objectively and dispassionately. The judicial oath, however, is more
a symbol rather than, of itself, a guarantee of the impartiality on the
part of a judge. It is just one of the factors which would inform the view
of a fair-minded observer in arriving at her or his objective judgment as
to the risk of bias and is not conclusive of whether a judge should recuse
himself on the basis of apparent bias.
R v S (RD)
 3 SCR 484 considered; Jones v DAS Legal Expenses Insurance Co. Ltd. and Ors
 EWCA Civ 1071 considered; Helow v Secretary of State for the Home Department 
1 WLR 2416 followed.
- Whether a judge should recuse themself from hearing a matter is not a
discretionary case management decision reached by weighing various factors
in the balance. Once the test of apparent bias is satisfied, the judge is
automatically disqualified from hearing the case, and considerations of
inconvenience, cost and delay are irrelevant. Accordingly, the learned
judge’s concerns about the prejudicial effect that his withdrawal from the
trial would have on the parties and the administration of justice are
totally irrelevant, as the paramount concern of the legal system is to
administer justice, which must be and must be seen to be fair and
Man O’ War Station Ltd v Auckland City Council
 UKPC 228 applied; Morrison v AWG Group Limited
 EWCA Civ 6 applied; Bates & Ors v Post Office Limited  EWHC 871 (QB)
 BAPTISTE JA: ‘Hopefully the Privy Council will get it
right.’ A hope that the Privy Council will get it right is, in the normal
course of things, is hardly a starting point to engage an application for
recusal. The expression of such a hope would more likely be associated with
a party who feels convinced or at least satisfied, that the Court of Appeal
erred in its decision, and that the error will be corrected on appeal to
the Privy Council. The twist here is that the comment is attributed, not to
any party, but to the learned judge who presided over a criminal matter in
which the appellant, Keston Riley, pled guilty to fraudulent evasion of
duty, as a result of which he was sentenced to imprisonment.
 Riley successfully appealed his conviction. The Director of Public
Prosecutions sought to appeal to the Privy Council. Upon his release from
prison, Riley filed a fixed date claim seeking declaratory and other
relief. In particular, Riley sought damages for deprivation of liberty, and
damages against the Director of Public Prosecutions for misfeasance in
public office. The latter related to his complaint that the learned
Director gave an undertaking not to prosecute for fraudulent evasion of
duty and having withdrawn that charge, breached that undertaking by
subsequently proceeding with the charge against him.
 In an unrelated criminal matter
the learned judge remarked in open court, in relation to Riley’s criminal
matter that ‘hopefully, the Privy Council will get it right’, the
implication being that the Court of Appeal was wrong in quashing Riley’s
conviction and sentence. In light of the learned judge’s comment and his
prior involvement in the criminal matter, Riley applied to the learned
judge to recuse himself from hearing the damages claim on the basis that he
would not bring an impartial mind to bear on the matter. The learned judge
heard arguments on the recusal application on 10th October 2019
and, on 14th October 2019, delivered a written ruling on the
matter declaring himself free from the contaminants of actual and apparent
bias. His Lordship described the ruling as an ‘interim decision to remain
the judge in the case, to be kept under review’, leaving open the
possibility of encouraging further arguments on actual bias if, as the case
develops, he or the parties sense that his mind is closing unfairly.
The appeal and application to strike
 Riley appealed the recusal decision on two grounds. Firstly, he
contended that the learned judge erred in law in refusing to recuse
himself. In that regard, he pointed out that the judge adjudicated at first
instance in the criminal matter ( The Queen v Keston Riley and Greenway)
in which he pled guilty and was imprisoned, with the conviction
subsequently quashed on appeal. He also pointed out that during an
unrelated criminal matter (The Queen v Claude Gerald)
the learned judge, in referring to Riley’s criminal matter, remarked in
open court that ‘hopefully the Privy Council will get it right’, implying
that the Court of Appeal was wrong in quashing Riley’s conviction and
 The second ground alleged that the learned judge could not or will not
bring an impartial mind to bear on the present case in which he is seeking
compensation for time spent in prison, as well as damages for misfeasance
in public office against the Director of Public Prosecutions. Riley
complained that the learned judge’s expression of dissatisfaction with the
Court of Appeal’s judgment is consistent with the reasonable belief that he
could not, without bias, consider compensating him.
 Ms. Evelyn, acting on behalf of the respondents, applied to strike out
the appeal, labelling the first ground of the notice of appeal as vague or
general in terms. She argued that no particulars were provided to enable
the Court of Appeal to determine whether the judge erred in law. Counsel
also argued that the mere fact that a judge, earlier in the same case or in
a previous case, commented adversely with reference to a party, would not,
without more, give rise to a finding that the judge would not bring an
impartial mind to bear on the case.
 Ms. Evelyn contended that the second ground disclosed no reasonable
grounds for bringing the appeal, as the ground was fully ventilated in the
High Court and the judge ruled that he was not biased. Counsel submitted
that in light of the judge’s ruling and in the absence of fresh evidence
that the judge was actually biased, there is nothing in this ground for the
Court of Appeal to consider. Further, Ms. Evelyn argued that there was
non-compliance with rule 62.10(1) of the Civil Procedure Rules 2000,
which meant that the Court was not positioned to determine whether the
learned judge erred in law.
 Upon the Court being satisfied by the parties that, on the material
available, it was in a position to hear the recusal appeal without
detriment to either party, it determined that it would be a more judicious
employment of time and resources to subsume the strike out application
within the hearing of the appeal. The Court is mindful that striking out is
a severe sanction which ought not to be lightly employed.
In my judgment, the grounds for striking out are unmeritorious. It is clear
from the notice of appeal what the appeal is about, and it cannot be
seriously advanced that there was no reasonable ground for bringing the
appeal. Striking out would not conduce to the overall fairness of the
proceedings and the wider interests of justice. The application to strike
out the appeal is accordingly refused.
 In resisting the appeal, Ms. Evelyn adverted to the law on actual and
apparent bias and referred to the circumstances bearing on the suggestion
that the judge was biased. She submitted that there was no suggestion or
evidence of actual bias, therefore recusal on that basis must fail. With
respect to presiding over the criminal matter and imposition of a custodial
sentence by the learned judge, Ms. Evelyn posited that the question is
whether a fair minded and informed observer, not being Riley, would
consider that the learned judge would not be impartial in hearing the
damages claim. Counsel considered that in a criminal matter, the judge is
not a decider of facts; Riley unequivocally pled guilty in the criminal
matter; the only matter that fell to be considered was sentencing; and
Riley’s motion concerned breaches of his rights under the Constitution.
 Ms. Evelyn submitted that the fair-minded observer would conclude that
in the criminal matter, the judge was only doing his duty. Further, the
role of the judge in a criminal matter and a civil matter differed. Coupled
with the separate and different issues for consideration by the judge in
the damages claim, the fair-minded and informed observer who is not unduly
suspicious would conclude that there is no real danger of bias.
 Before proceeding further, it is instructive to refer to the legal
principles governing recusal.
The law on recusal
Otkritie International Investment Management Ltd and Ors v Mr George
Longmore LJ summarised the law on recusal as follows:
“It is a basic principle of English Law that a judge should not sit to hear
a case in which the fair-minded and informed observer, having considered
the facts, would conclude that there was a real possibility that he was
biased: see Porter v Magill  2 AC 357 para
103 per Lord Hope of Craighead. It is an even more fundamental principle
that a judge should not try a case if he is actually biased against one of
the parties. The concept of bias includes any personal interest in the case
or friendship with the participants, but extends further to any real
possibility that a judge would approach a case with a closed mind, or
indeed, with anything other than an objective view; a real possibility in
other words that he might in some way have ‘pre-judged’ the case.”
 In Otkritie, the Court of Appeal reviewed the
circumstances under which judges should recuse themselves for bias. The
general rule is that a judge should not recuse himself, unless he either
considers that he genuinely cannot give one or any of the parties a fair
hearing (actual bias) or that a fair-minded and informed observer would
conclude that there was a real possibility that he would not do so
(apparent bias). There must be substantial evidence of actual or apparent
bias before the general rule can be satisfied. The issue of recusal is
extremely fact sensitive and recusal ought not to be lightly done.
Bias is not to be imputed to a judge by reason of his previous rulings or
decisions in the same case (in which a party has participated and been
heard) unless it can be shown that he is likely to reach his decision by
‘reference to extraneous matters or predilections or preferences’.
 In Dobbs v Triodos Bank NV,
Chadwick LJ gave this important guidance to judges on the issue of recusal
at paragraph 7:
“It is always tempting for a judge against whom criticisms are made to say
that he would prefer not to hear further proceedings in which the critic is
involved. It is tempting to take that course because the judge will know
that the critic is likely to go away with a sense of grievance if the
decision goes against him. Rightly or wrongly, a litigant who does not have
confidence in the judge who hears his case will feel that, if he loses, he
has in some way been discriminated against. But it is important for a judge
to resist the temptation to recuse himself simply because it would be more
comfortable to do so. The reason is this. If the judges were to recuse
themselves whenever a litigant – whether it be a represented litigant or a
litigant in person – criticised them (which sometimes happens not
infrequently) we would soon reach the position in which litigants were able
to select judges to hear their cases simply by criticising all the judges
that they did not want to hear their cases. It would be easy for a litigant
to produce a situation in which a judge felt obliged to recuse himself
simply because he had been criticised – whether that criticism was
justified or not. This would apply, not only to the individual judge but to
all judges in this court; if the criticism is indeed that there is no judge
of this court who can give Mr. Dobbs a fair hearing because he is
criticising the system generally, Mr. Dobbs’ appeal could never be heard.”
Likewise in Shaw v Kovac and Anor,
Underhill LJ stated at paragraph 86, that:
“One can understand in human terms that a litigant may not like the
prospect of a case being heard by a judge in front of whom they have failed
on a previous occasion. But the system could not operate if that were
recognised as a sufficient reason for requiring recusal. It is necessary to
be dispassionate. An impartial observer will generally have no difficulty
in accepting that a professional judge will decide the case before him or
her on its own merits and will be unaffected by how they may have decided
different issues involving the same party or parties. There will of course
sometimes be particular circumstances which justify a real doubt about the
judge’s impartiality; but nothing relied on by Mr Berkley in this case came
even remotely close to doing so.”
 Importantly, in applications for recusal, the court must be astute
enough not to allow its composition to be manipulated by a litigant who
seeks or sees a perceived advantage in a particular judge presiding over or
not presiding over a matter. This is something the court has to guard
against. In Shaw v Kovac, Lord Burnett LJ warned against
those who may wish to manipulate the composition of the court for a
perceived advantage. At paragraph 88, he observed that questions of
apparent bias are to be judged from the point of view of the fair-minded
and informed observer, and stated: ‘The party who seeks to bounce a judge
from a case may be fair-minded and informed but may very well lack
objectivity. There are others who cynically seek to manipulate the
composition of the court for a perceived advantage.’ In similar vein, in Beard Winter LLP v Kersasp Shekhadar,
Doherty JA said at paragraph 10:
“…judges do the administration of justice a disservice by simply
yielding to entirely unreasonable and unsubstantiated recusal demands.
Litigants are not entitled to pick their judge. They are not entitled to
effectively eliminate judges randomly assigned to their case by raising
specious partiality claims against those judges. To step aside in the face
of a specious bias claim is to give credence to a most objectionable
To the same effect, in Virdi v Law Society,
the court pointed out that, in our system, litigants are not permitted to
choose their judges.
 The test for apparent bias has a two-staged process. The court has to
ascertain all the circumstances bearing on the suggestion that the judge
would be biased and ask whether all those circumstances would lead the
fair-minded and informed observer to conclude that there was a real
possibility that the judge was biased.
The facts and context are critical, with each case turning on an intense
focus its essential facts.
 In Helow v Secretary of State for the Home Department
Lord Hope gave an insight into the construct of the fair-minded observer.
At paragraph 2, His Lordship stated:
“The observer who is fair-minded is the sort of person who always reserves
judgment on every point until she has seen and fully understood both sides
of the argument. She is not unduly sensitive or suspicious, as Kirby J
observed in Johnson v Johnson (2000) 174 ALR 655, (2000) 201 CLR 488 (para
53). Her approach must not be confused with that of the person who has
brought the complaint. The ‘real possibility’ test ensures that there is
this measure of detachment. The assumptions that the complainer makes are
not to be attributed to the observer unless they can be justified
objectively. But she is not complacent either. She knows that fairness
requires that a judge must be, and must be seen to be, unbiased. She knows
that judges, like anybody else, have their weaknesses. She will not shrink
from the conclusion, if it can be justified objectively, that things that
they have said or done or associations that they have formed may make it
difficult for them to judge the case before them impartially.”
 As Lord Hope explained at paragraph 3 of Helow, the
attribute that the observer is ‘informed’ makes the point that before she
takes a balanced approach to any information she is given, she will take
the trouble to inform herself on all relevant matters. She is the kind of
person who takes the trouble to read the text of the article as well as the
headlines. She is able to put whatever she has read or seen into its
overall social, political or geographical context. Being fair-minded, she
will appreciate that the context forms an important part of the material to
be considered before passing judgment.
 In Harb v HRH Prince Aziz bin Fahd bin Abdul Aziz,
Lord Dyson MR highlighted the important point that the opinion of the
notional informed and fair-minded observer is not to be confused with the
opinion of the litigant. Further, the informed and fair-minded observer is
to be treated as knowing all the relevant circumstances and it is for the
court to make an assessment of these facts. The assessment of whether an
informed and fair-minded observer, having considered the facts, would
conclude there was a real possibility of bias, depends on an examination of
all relevant facts. It was held in Virdi v Law Society,
that the hypothetical fair-minded observer is to be treated as if in
possession of all the relevant facts whether publicly available or not. The
Court also stated that: ‘[a] fair-minded observer would not reach a
conclusion that a tribunal was biased or appeared to be so, without seeking
to obtain the full facts and any explanation put forward by the tribunal.’
 As has been seen, apparent bias is to be judged from the point of view
of a fair-minded and informed observer. How is this given effect to at the
appellate level? As stated by Mummery LJ in Morrison and Anor v AWG Group Ltd and Anor:
“On the issue of disqualification, an appellate court is well able to
assume the vantage point of a fair-minded and informed observer with
knowledge of the relevant circumstances. It must itself make an assessment
of all the relevant circumstances and then decide whether there is a real
possibility of bias.”
This was endorsed by Chancellor Etherton in Resolutions Chemicals Limited v H Lundbeck A/S.
Similarly, Richards LJ stated inNational Assembly for Wales v Condron that ‘[t]he Court must look at all the circumstances as they
appear from the material before it, not just at the facts known to the
objectors or available to the hypothetical observer at the time of the
 In Resolution Chemicals Limited, Chancellor Etherton
summarised a number of principles at paragraph 35, which I endorse. First,
the test of 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. The fundamental principle
underlying both the Constitution and the common law principles is the
fundamental consideration that justice should not only be done but should
manifestly and undoubtedly be seen to be done.
The facts and context are critical. Each case turns on an intense focus on
its essential facts.
If the fair-minded and informed observer would conclude that there is a
real possibility that the tribunal will be biased, the judge is
automatically disqualified from hearing the case. The decision to recuse in
these circumstances is not a discretionary case management decision reached
by weighing various relevant factors in the balance. Considerations of
inconvenience, cost and delay are irrelevant.
I would add that at the appellate level the appeal court carries the mantle
of the fair-minded and informed observer.
 What are the circumstances bearing on the suggestion that the judge
would be biased? Firstly, Riley filed an affidavit in support of the
application for recusal. He stated that he pled guilty to fraudulent
evasion even though the prosecution undertook not to proceed with the
matter; this was also evident in the new indictment filed. Riley also
stated that he felt he was more or less forced to plead to the offence of
fraudulent evasion, a charge which had been withdrawn by the prosecution.
He was convicted for that offence and sentenced to prison – his conviction
and sentence were vacated by the Court of Appeal. He filed a fixed date
claim form seeking declaratory relief as well as damages under the Constitution of Montserrat,
coupled with damages for misfeasance in public office against the Director
of Public Prosecutions.
 Riley deposed that the learned judge, the only judge assigned to
Montserrat, adjudicated on his criminal matter and gave him a custodial
sentence. He stated that he was informed by his attorney that in July 2018,
the learned judge, during a hearing before him in the case of The Queen v Claude Gerald, stated in open court that
‘hopefully, the Privy Council will get it right’.
 Riley stated that the learned judge’s indication that the Court of
Appeal was wrong makes it consistent with a reasonable belief that he could
not without bias consider the issue of compensation for him. Additionally,
the fact that the judge made a determination that a custodial sentence best
suits him is somewhat inconsistent with a determination that he ought to be
 Secondly, the fact that the court must ascertain all the circumstances
which have a bearing on the suggestion that the judge was biased is
inconsistent with any limitation on the circumstances that should be taken
into account. The material facts therefore are not limited to those which
are apparent to the applicant. A fair-minded observer would not reach a
conclusion that a tribunal was biased or appeared to be so, without seeking
to obtain the full facts and any explanation put forward by the tribunal.
In that regard, the judge’s ruling on the recusal application also
constitutes part of the circumstances to be considered. While it is true
that, by his ruling, the judge has declared himself free from the
contaminants of bias, the judge’s declaration is not determinative of the
issue and this Court is not bound to accept it at face value.
In fact, the statements made by a judge in a written ruling may tend to
affirm or refute such a conclusion. The judge’s ruling therefore remains
relevant to the appellate court’s assessment of whether there was any bias,
actual or apparent, on the part of the judge, notwithstanding his overall
conclusion that there was not.
 At paragraph 1 of the recusal ruling, the judge stated that he
accepted Riley’s guilty plea on 20th March 2017 for the offence
of fraudulent evasion of duty on 8th August 2016, for which he
was sentenced to two months imprisonment on 10th April 2017. At
the time Riley was represented by counsel Mr. David Brandt, but later
changed counsel to Mr. Warren Cassell. The learned judge continued:
“…it appears [Mr. Cassell] on 17.04 18 persuaded the Court of Appeal
the prosecution on 22.11.16 had given an ‘undertaking’ not to prosecute for
fraudulent evasion, and in consequence, Riley’s conviction following his
plea was quashed. Attempt was made by the prosecution to appeal to the
Privy Council but this was on 22.08.19 rejected as filed out of time.
Counsel Cassell reports that in July 2018, awaiting the outcome of the
Privy Council appeal, I commented on this case to the effect, ‘ hopefully, the Privy Council will get it right‘, for which reason
he argues I am biased. Further he argues that having dealt with the case at
plea and sentence I will be appear to be biased. Therefore for both
reasons, for actual and apparent bias, he submits I should be recused.”
 At paragraph 5, the judge stated:
“Accepting the decision of the Court of Appeal, of interest is the
a. During the earlier proceedings, Counsel Cassell represented the
co-defendant Greenaway (a civilian, not a customs officer) who agreed he
had helped Riley commit the offence, and who pleaded at the same time to
fraudulent evasion, receiving a community penalty, and who curiously did
not suggest his conviction was illegal as being in the teeth of the
so-called prosecution ‘undertaking’.
b. After Counsel Cassell filed simple notice of appeal for Riley on
24.04.17, the actual evidence for the complaint of wrongful conviction came
from affidavits filed as late as03.04.18 by Riley, Greenaway (yet who did
not appeal his own conviction), and a friend from the public gallery named
Roach, just two weeks before the Court of Appeal sitting.
c. Though Riley asserts he was ‘forced’ to plead, begging waiver of legal
professional privilege, Counsel Brandt never provided any affidavit to
explain why he pleaded.
d. Having read the decision of the Court of Appeal, Thom JA presiding,
which was concerned about a change in indictment numbers and whether there
had been on 22.11.16 a prosecution undertaking, it seems there was no
discussion during the hearing of how an application by a defendant on
20.03.17 to plead to fraudulent evasion would amount to a request to set
aside any earlier undertaking (if one had been given) so that if the
offered plea was accepted by prosecution, and court, it would likely
reverse, and by implied defence agreement dissolve, any such said earlier
prosecution undertaking on 22.11.16.”
 The judge’s comments at paragraph 5 of his ruling are rather
unfortunate. As already indicated, an application for recusal is very fact
sensitive and context is critical. The damages claim in respect of which
recusal was sought stemmed from the Court of Appeal allowing Riley’s appeal
against conviction in the context of an undertaking having been given not
to prosecute him for the offence of fraudulent evasion of duty. The judge’s
comments must be examined in that context. The question, of course, is
whether the fair-minded and informed observer having considered the
circumstances would conclude that there is a real possibility that the
judge would be biased when presiding over the damages claim.
 The judge’s comments provide a compelling insight into his views with
respect to the rectitude of the Court of Appeal’s decision (a decision he
was bound by) and by extension his views on the facts which underpin both
the appeal and the damages claim over which he was to preside. The judge
questioned the absence of an affidavit from Riley’s counsel, Mr. Brandt, as
to why Riley pled guilty to fraudulent evasion in light of his (Riley’s)
statement that he was forced to so do. The judge also referred to the
undertaking as a ‘so called prosecution undertaking’ in commenting on the
fact that Riley’s co-defendant had not raised the issue of his conviction
being illegal, in light of the undertaking, although he pled guilty at the
same time as Riley. The learned judge’s critique or criticism of the Court
of Appeal’s decision, at paragraph 5(d) of his ruling, is particularly
revealing. Apart from seemingly questioning whether an undertaking had in
fact been given, the judge, in essence, questioned the propriety or
correctness of the decision of the Court of Appeal allowing the appeal
against conviction. I have no doubt that a fair-minded and informed
observer would readily conclude that the learned judge would approach
Riley’s damages claim with a closed mind or with anything other than an
The learned judge’s knowledge and prior involvement
 In rejecting the application for recusal, the learned judge placed
great store on his knowledge, flowing from his previous involvement in the
proceedings in court. He regarded this knowledge as a positive thing,
highlighting the perceived benefits derivable therefrom which would serve
him in good stead in hearing Riley’s damages claim.
 In Stubbs v The Queen
Lord Lloyd-Jones addressed the issue of whether the prior involvement of a
judge in an earlier stage of the proceedings should require him to recuse
himself. In Stubbs, a trial for murder took place in 2017
against three defendants. The trial had to be aborted, but before it was,
the judge made rulings on admissibility of evidence and on a no case
submission. Another trial in 2013 led to their conviction; the judge had
played no part in that trial. They appealed. The appeal was heard in 2015
by a panel which included the judge who had conducted the aborted trial and
who, by then, had been elevated to the Court of Appeal. The appellants
asked him to recuse himself on the ground of apparent bias but he refused
to do so. The appeal was subsequently dismissed.
 On appeal to the Privy Council, the appellants relied on a basic
common law principle that a judge should not sit to hear a case in
circumstances where the fair-minded and informed observer, having
considered the facts, would conclude that there was a real possibility that
the tribunal was biased. That principle is harmonious with the
jurisprudence of the European Court of Human Rights which affirms the right
to an independent and impartial tribunal under article 6 of the European
Convention on Human Rights.
 In allowing the appeal, Lord Lloyd-Jones, delivering the judgment of
the Board, held at paragraph 16 that it is not the case that any prior
involvement of a judge in the course of litigation will require him to
recuse himself from a further judicial role in respect of the same dispute.
In the great majority of such cases there will simply be no basis on which
it could be suggested that the judge should recuse himself, notwithstanding
earlier rulings in favour of one party or another and there will often be
great advantages to the parties and to the administration of justice in
securing judicial continuity. The issue will only arise at all in
circumstances where prior involvement is such as might suggest to a
fair-minded and informed observer that the judge’s mind is closed in some
respect relevant to the decision which must now be made. While it is not
possible to provide a comprehensive list of factors which may be relevant
to this issue which will necessarily depend on the particular circumstances
of each case, relevant factors are likely to include the nature of the
previous and current issues, their proximity to each other and the terms in
which the previous determinations were pronounced.
 The guidance given by the Board is very instructive for the purpose of
this appeal. Applying this guidance, at the outset it is clear that the
mere fact of the judge’s prior involvement in the Riley’s criminal matter
does automatically disqualify or preclude him from presiding over the
damages claim. I will however consider pertinent aspects of the judge’s
ruling. At paragraph 6, the learned judge reasoned that an assessment of
how Riley claimed he has been wronged by the Director of Public
Prosecutions will probably benefit from knowledge of the evidence and plea
proceedings, which he (the judge) has. He remarked that knowledge is not
automatically bias and that while bias suggests an irrational outlook,
knowledge suggests a rational one. The judge further stated that, in
principle, being true as best as he can to his judicial oath to act fairly
without fear or favour, knowledge will likely add to a just decision,
whereas ignorance of the earlier proceedings may lead to an unjust one.
 In continuing with the theme of knowledge, the learned judge stated at
paragraph 8 that the informed third-party observer would expect him (the
original judge) to sit on the case because of fear that an uninformed judge
might be taken advantage of by the parties, in particular perhaps by
Riley’s counsel, Cassell. This would not arise where there is knowledge of
what has happened in the proceedings. He went on to say: ‘being rid of me
would likely be thought by an observer to be a defence tactic precisely
because I do know about the case’.
 In furtherance of his discourse on knowledge, the learned judge
reasoned that it was not uncommon in a small jurisdiction as Montserrat for
a judge to know more about court matters than in larger population groups
(where there is also the luxury of finding another judge). The third-party
expects the judge to have some knowledge and to do the case, precisely
because of his knowledge of its earlier life in court. The third- party
would also expect him to be robust in applying his oath. In the
circumstances, the judge concluded that this was not a case in which
recusal for apparent bias was appropriate.
 The learned judge went on however to make important pronouncements
which lead this Court to conclude that because of his prior involvement in
the matter, he would not approach Riley’s damages claim with an open mind.
His Lordship’s comments at paragraphs 10 and 11 are particularly
instructive and indubitably attest to that. At paragraph 10, His Lordship
stated that he knew a plea of fraudulent evasion was offered on 20 th March 2017 (with a limited maximum of two years) to avoid a
trial due to start that day against Riley and Greenaway for conspiracy to
defraud (with a maximum life imprisonment) which explains why it was
attractive to the defence of both to ask so to plead. Critically, he added:
“I also know the quality and strength of the evidence as trial was due to
start, and I had seen the video of Riley slipping the goods out of bond
without paying duty, meaning I am in a position to adjudicate on whether
the DPP was engaged in misfeasance, whether a miscarriage of justice has
arisen, and what scale of damages, if any, might arise in light of the
conviction being quashed.”
At paragraph 11, the judge continued:
“As the case develops, if I or the parties sense my mind is closing
unfairly, then I will encourage further argument as to actual bias. But for
now, in my judgment the case should proceed to trial before me as the
designated Judge on Montserrat who knows what happened earlier, and I look
forward to what Riley will say about the cctv footage and why he pleaded,
and to what Counsel Cassell will say about the absence of any affidavit
from Counsel Brandt, nor appeal from Greenaway who became Riley’s witness
on appeal, plus how best to assess the alleged undertaking of 22.11.16 and
what if any damages arise in the face of the incriminating evidence.”
 I note that the appearance of bias as a result of pre-determination or
pre-judgment is a recognised ground for recusal and the appearance of bias
includes a clear indication of a prematurely closed mind: see Steadman-Byrne v Amjad and Ors.
As indicated earlier, the concept of bias extends to any real possibility
that a judge would approach a case with anything other than an objective
view, a real possibility that he would pre-judge the case. I am satisfied
that the terms in which the judge has expressed his views throw real doubt
about his ability to approach Riley’s damages claim with an objective
 At paragraph 11 of his recusal ruling, the learned judge stated that,
‘[w]hile it may well be I have early thoughts on the merits, I do not
consider this knowledge is bias, in the sense that it gives rise to
irrational thought processes, and instead I am sure that l still have an
open mind, for now’.
 It is perfectly proper for a judge, having pre-read the papers and
skeleton arguments to have a provisional view before coming into court. It
is well recognised that a judge will commonly begin forming views about the
evidence as it goes along, and he may legitimately give assistance to the
parties by telling them what is presently in his mind. For this disclosure
enables the parties to know the way he was currently thinking and
accordingly where attention needed to be focussed (more particularly by the
claimant) to change his mind: see Costello v Chief Constable of Derbyshire.
In Arab Monetary Fund v Hashim,
Bingham MR said at page 356 A-C:
“But on the whole the English tradition sanctions and even encourages a
measure of disclosure by the Judge of his current thinking, it does not
sanction the pre-mature expression of factual conclusions or anything which
may prematurely indicate a closed mind.”
 It is proper for the judge to inform the parties of his view so long
as he did not give the impression that he had a closed mind on the issue.
The test of apparent bias does not prevent the judge from expressing
certain views ‘along the way’. What is not allowed is for him to express
views that demonstrate that he or she has reached a concluded view on
something prematurely. There must not be a premature formation of a
concluded view adverse to a party. Bias in this case means the premature
formation of a concluded view adverse to a party. It is, however,
unacceptable for the judge to form or to give the impression of having
formed a firm view adverse to the credibility of Riley, even before hearing
evidence in his damages claim. The judge was approaching the matter with a
closed mind, notwithstanding his comment that his mind was open. He clearly
erred in so doing.
 In his recusal decision, the learned judge went on to seemingly
express ambivalence as to whether he made the remark ‘hopefully the Privy
Council will get it right’. He explained that:
“The undated suggested remark in July 2018, ‘ hopefully the Privy Council will get it right‘, if it was said, is
not ad hominem, and it seems does not obviously show a closed
mind, but instead a curiosity as to what they will make of Riley’s unusual
suit, which amounts to (sic) complaint he should not have been
allowed to ask to plead guilty to lesser fraudulent evasion to avoid trial
on conspiracy to defraud.”
In my view, the explanation advanced by the learned judge, stripped of its
niceties, is essentially reflective of the continuation of the theme that
the Court of Appeal got it wrong in quashing Riley’s conviction.
 The language which Riley complained about, (‘hopefully the Privy
Council will get it right’) and the earlier mentioned critical
pronouncements in the judge’s recusal decision, demonstrate that the
learned judge was satisfied that the Court of Appeal erred in quashing the
conviction; he knew all the evidence; he had reviewed the incriminating
evidence against Riley; he presided at the assizes when Riley pled guilty
and knew what transpired there; Riley’s counsel would not be able to take
advantage of him at the damages hearing and he, the learned judge, was in
fact, just waiting to put things right in the damages claim. Also, the
judge’s assertion that the informed third party would expect him to do the
case precisely because he knows of its earlier life in court, rather than
allaying the fears of the well-informed third party, would fortify such
fears. The fair-minded and well-informed observer would recognise that the
learned judge had serious issues with the rectitude of the Court of
Appeal’s decision; a matter which is extraneous to the determination of the
damages claim and was not a matter which the judge should seek to
re-examine. There are real grounds for doubting the judge’s ability to
ignore extraneous considerations, prejudices and predilections and bring an
objective judgment to bear on the claim.
The judicial oath
 The learned judge also addressed the issue of the sanctity of his oath
as judicial officer.
The judicial oath is one of the relevant matters which the fair-minded and
informed observer is aware of and takes into account when determining the
question of apparent bias.
The informed observer would know that a judge is supposed to be true to his
judicial oath. In the context of apparent bias, much weight has been placed
on the judicial oath of office and the fact that professional judges are
trained to judge and to judge objectively and dispassionately.
 The issue of the judicial oath was however revisited in Helow. The question was whether there was a real
possibility that Lady Cosgrove was biased by reason of her membership of an
association and her receipt of its quarterly publication which contained
some articles which were fervently pro-Israeli and antipathetic to the
Palestine Liberation Organisation (“the PLO”) of which the appellant was a
member. It was held that there was no real possibility of bias in her case.
Some of the reasons advanced and factors taken into account were that: (i)
the context of the case was crucially important; (ii) Lady Cosgrove was a
professional judge with years of relevant training and experience; and
(iii) the taking of the judicial oath – albeit as more of a symbol than of
itself a guarantee of the impartiality which any professional judge is by
training and experience expected to practice and display.
 In addressing the issue of the judicial oath at paragraph 57, Lord
Mance referred to R v S (RD)
where it was said at paragraph 117 that:
“Courts have rightly recognised that there is a presumption that judges
will carry out their oath of office… This is one of the reasons why
the threshold for the successful allegation of perceived judicial bias is
high. However, despite this high threshold, the presumption can be
displaced by ‘cogent evidence’ that demonstrates that something the judge
has done gives rise to a reasonable apprehension of bias.”
After quoting from paragraph 119 of the judgment, Lord Mance concluded:
“So viewed the judicial oath appears to me more a symbol rather than of
itself a guarantee of the impartiality that any professional judge is by
training and experience expected to practice and display. But on no view
can it or a judge’s professional status and experience be more than one
factor which a fair-minded observer would have in mind when forming his or
her objective judgment as to the risk of bias.”
 I endorse the view expressed in Helow that the
judicial oath appears to be more a symbol rather than of itself a guarantee
of the impartiality that any professional judge is by training and
experience expected to practice and display. It is just one of the factors
which would inform the view of a fair-minded observer in arriving at her or
his objective judgment as to the risk of bias and is not conclusive of
whether a judge should recuse himself on the basis of apparent bias.
Doubts as to need for recusal
 Interestingly, in paragraph 11 of his ruling, the learned judge also
left open the possibility of reviewing his decision not to recuse. He
asserted that it was an interim decision to be kept under review but, as
the case develops, if he or the parties sense his mind is closing unfairly,
then he will encourage further argument as to actual bias. It appears to me
that this is a rather peculiar stance to adopt. In Locabil (UK) v Bayfield Properties Ltd,
the court said that because proof of actual bias is very difficult, the
policy of the common law is to protect litigants who can discharge the
lesser burden of showing a real danger of bias without requiring to show
that such bias actually exists.
 Where there are real grounds for doubt as to a lack of bias, the doubt
must be resolved in favour of recusal. Bias is an attitude of mind that
prevents the judge from making an objective determination of the issues
that he or she has to resolve. It may arise from particular circumstances
which, for logical reasons, predispose a judge towards a particular view of
the evidence or the issues before him.
The law distinguishes actual bias from apparent bias. Actual bias is
subjective and deals with the judge’s state of mind. Apparent bias is
objective and deals with the judge’s conduct and the surrounding
circumstances. Where a judge is actually biased in a decision, then justice
has not been done. Where a decision is tainted by apparent bias, then
justice is not seen to be done. Cases holding that there has been actual
bias employed by a judge are rare. Most cases dealing with bias are argued
and decided on the basis of apparent bias.
 How does a judge assess whether there should be a recusal? It must be
stressed that the assessment as to whether there should be a recusal for
apparent bias is not a matter for the discretion of the judge. There was
either a real possibility of bias in which case the judge was disqualified
by the principle of judicial impartiality, or there was not, in which case
there was no valid objection to trial by him.
To put it otherwise, either there should be a recusal based on an
application of the fair minded observer test or there should not. So,
disqualification of a judge for apparent bias is not a discretionary
matter. The Supreme Court of Canada recalled in Wewaykum v Canada
that the public confidence in our legal system is rooted in the fundamental
belief that those who adjudicate in law must also do so without bias or
prejudice and must be perceived to do so. The essence of impartiality lies
in the requirement of the judge to approach the case to be adjudicated with
an open mind.
 In the present case, the application for the judge to recuse from
hearing the damages claim was taken in advance of the trial. As Mummery LJ
observed in Morrison and Anor v AWG Group Ltd at paragraph 9, where the hearing has not
yet begun, there is scope for the sensible operation of the precautionary
principle. If, as in the present case, the court has to predict what might
happen if the hearing goes ahead before the judge to whom objection is
taken and to assess the real possibility of apparent bias arising, prudence
naturally leans on the side of being safe rather than sorry. Chancellor
Etherton at paragraph 38 of Resolution Chemicals Limited
referred to and endorsed the passage from Mummery LJ. The Chancellor
referred to the fact that Mummery LJ pointed to the practical difference
between an objection to the judge based on facts discovered during the
course of, or only at the end of, the hearing and a situation where the
objection is taken before the hearing has begun. In the latter situation,
he observed that there is scope for the sensible application of the
precautionary principle, that is to say prudence naturally leans on the
side of being safe than sorry.
 At paragraph 39 of Resolution Chemicals Limited,
Chancellor Etherton said that the precautionary principle is a sensible one
in view of the obvious practical complications if there is an appeal from a
refusal to recuse or if there is a challenge made on the basis of actual or
apparent bias at the end of the case. The overriding objective that justice
should be seen to be done and of the need to maintain the confidence of
society in general, and of the parties in particular, in the administration
of justice also promotes a disposition of a judge to accede to a recusal
application when it is made by a party’s legal advisors. At paragraph 40,
the Chancellor recognised the importance of distinguishing between a
pragmatic precautionary approach and the application of the test itself. If
a fair-minded and informed observer, having considered the facts, would not
conclude that there is a real possibility that the tribunal will be biased,
then the objection to the judge must fail even if that leaves the applicant
dissatisfied and bearing a sense that justice will not or may not be done.
 Of course, the position is that if a fair-minded and informed observer
would conclude that there is a real possibility that the tribunal is
biased, the judge must recuse himself.
Further, if there is a real ground for doubt, that doubt should be resolved
in favour of recusal. A closed mind is the very antithesis of fairness. In
the circumstances, I am of the view that a judge, having refused a recusal
application, should not embark on hearing a matter and wait to see whether
there comes a time where he or the parties sense that his mind is closing
unfairly, then make a decision, after encouraging further arguments from
the parties on actual bias, whether he should recuse himself. I very much
doubt whether such a position should be encouraged or countenanced, having
regard to the law on recusal.
Inconvenience, costs and delay occasioned by recusal
 At paragraph 8 of the learned judge’s ruling, His Lordship makes
passing mention of possible logistical or budgetary implications attendant
on the success of the recusal application, in support of the view that he
should not recuse himself from hearing Riley’s damages claim. At paragraph
8, the learned judge stated:
“Noting I am the lone designated judge on Montserrat, I leave aside it may
be too expensive always to find other judges in every case where knowledge
arises, as might be easier to do for example in London, and observe merely
that in my experience of three years on island the folk of Montserrat will
expect me to do this case precisely because I know about its earlier life
 The decided cases however do not countenance such considerations as
having bearing on the question of disqualification or recusal by virtue of
apparent bias. Quite oppositely, it is clear that once the test of apparent
bias is satisfied, the judge is automatically disqualified from hearing the
case and considerations of inconvenience, cost and delay are irrelevant.
These considerations do not count where the principle of judicial
impartiality is invoked. The importance of the trial being seen to be fair
takes precedence. This is because it is a fundamental principle of justice
both at common law and under the Constitution. If on an assessment of all
the relevant circumstances, the principle either has been, or will be,
breached, the judge is automatically disqualified from hearing the case. It
is not a discretionary case management decision reached by weighing various
relevant factors in the balance.
 The learned judge’s concerns about the prejudicial effect that his
withdrawal from the trial would have on the parties and the administration
of justice are totally irrelevant to the crucial question of bias and his
disqualification. In terms of time, cost and listings, it might well be
more efficient and convenient to proceed with a trial but efficiency and
convenience are not the determinative legal value: the paramount concern of
the legal system is to administer justice, which must be and must be seen
by the litigants and fair-minded members of the public to be fair and
impartial. Anything less is not worth having.
Disruption to the administration of justice is irrelevant to the crucial
question of the real possibility of bias.
 Having conducted the requisite assessment, and for the reasons given,
I am of the firm view that the learned judge erred in not acceding to the
recusal application. Justice and fairness required recusal as the
fair-minded and informed observer, having considered the facts, would have
concluded that there was a real possibility that the learned judge was
biased, and in particular, that he would have approached the matter with a
 I would accordingly order that:
(1) The application to strike out the appeal is dismissed.
(2) The appeal is allowed.
(3) The decision of the judge not to recuse himself is set aside.
(4) A different judge is to be assigned to conduct the hearing of the
(5) The appellant is awarded costs to be assessed by a Master, if not
agreed within 21 days.
Louise Esther Blenman
Justice of Appeal
Justice of Appeal
By the Court
The Queen v Claude Gerald MNIHCR2018/0005.
MNIHCR2016/0016 (delivered 10th April 2017, unreported).
CPR 62.10(1) requires an appellant to file and serve with the
notice of appeal, written submissions in support of the appeal
together with six bundles of documents comprising the judgment or
order appealed, such affidavits, witness statements or exhibits
relevant to the question at issue on the appeal which were put in
evidence before the court below, and other relevant documents.
See HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex
Global Management Ltd and Anor  UKSC 64; Real Time Systems
Limited v Renraw Investments Limited and Ors  UKPC 6.
 EWCA Civ 1315 at paragraph 1.
See paragraph 13 of Otkritie.
See paragraph 22 of Otkritie.
 EWCA Civ 468.
 EWCA Civ 1028.
 OJ No. 3257 (QL).
 EWCA Civ 100.
See Porter v Magill  UKHL 67 at paragraph 102.
See Helow v Secretary of State for the Home Department  1 WLR
2416 at paragraph 2.
 EWCA Civ 556 at paragraph 69.
See paragraph 41.
See Virdi at paragraph 38.
 EWCA Civ 6 at paragraph 20.
 EWCA Civ 1515 at paragraph 41.
 EWCA Civ 1573 paragraph 50.
R (McCarthy) v Sussex Justices  1 KB 256 at 259.
Man O’ War Station Ltd v Auckland City Council  UKPC 28 at
Morrison and Anor v AWG Group Ltd  EWCA Civ 6 at paragraph 6.
Cap 1.01, Laws of Montserrat 2008.
Locabil (UK) v Bayfield Properties Ltd  QB 451 at paragraph
 UKPC 30, per Lord Lloyd-Jones at paragraph 16.
 1 WLR 2484 at paragraph 16.
 EWCA Civ 381 at paragraph 9.
 6 Admin LR 348, cited at paragraph 27 of Jiminez v London
Borough of Southwark  EWCA Civ 502.
See paragraphs 6, 7 and 8 of the judge’s recusal ruling.
R v S (RD)  3 SCR 484 per Cory and Iacobucci JJ at paragraph
See for example Jones v DAS Legal Expenses Insurance Co. Ltd. and
Ors  EWCA Civ 1071, per Warf LJ at paragraph 28(vi).
 3 SCR 484.
 QB 451 at 472.
Re Medicaments and related Classes of Goods (No.2)  ICR 564
at paragraph 37.
Morrison and Anor v AWG Group Ltd  EWCA Civ 6 at paragraph
2003 SCC 45 at paragraphs 57 and 58.
Dorman & Ors v Clinton Devon Farms Partnership  EWHC 2988
QB at paragraph 59.
Man O’ War Station Ltd v Auckland City Council  UKPC 228 at
Morrison v AWG Group Limited  EWCA Civ 6 at paragraph 6.
Morrison and Anor v AWG Group Limited  EWCA Civ 6 at
Bates & Ors v Post Office Limited  EWHC 871 (QB) at