PROCEDURAL FAIRNESS
Preliminary
Procedural fairness is a “motherhood statement” of administrative law (Groves)—i.e. so obvious that no one could
disagree with it, but which is imprecise and doesn’t give us precise normative reasons justifying judicial intervention
if a procedure is ‘unfair’.
2 main reasons:
Instrumental: Fairness as a means to an end
o Raji v General Medical Council [2003], per Lord Steyn
A procedural right of fairness will play an instrumental role in promoting just decisions.
I.e. Procedural fairness helps us to ensure a fair outcome.
Difficulty: When you can’t easily discern whether a certain procedural fairness (PF) requirement
secures a just outcome, in which case you might look at the normative reason.
Normative: Respecting the individual (i.e. PF is valuable in itself)
o Galligan
There is a link between bias (loss of impartiality) and the process of reasoning—financial interests
& personal feelings are improper considerations that should be left out of DM process.
Thus there is link between bias & fairness: On a principle level, bias attacks the idea that in any
legal context there are authoritative standards to apply. The DM process is rendered “illegitimate”
otherwise.
o Allan
In a democratic society, people are treated with dignity and respect.
o A particularly useful justification when a certain PF requirement doesn’t make a practical difference in
securing just outcome.
Requirements of PF:
Lloyd v McMahon, per Lord Bridge
o ‘The so-called rules of natural justice are not engraved on tablets of stone.’
o What PF demands will vary from case to case.
o Includes e.g. right to receive notice, right to make representations, providing reasons for a decision,
unbiased DM.
(A) RULE AGAINST BIAS
Objectives:
Factual claim: DM must be actually, factually, fair.
Appearance of fairness: We should be in no doubt that a DM was unbiased and fair.
o R v Sussex Justices, ex p McCarthy [1924], per Lord Hewart CJ
Famously sums up the distinction between actual bias and appearance of fairness.
It is “of fundamental importance that justice should not only be done, but should manifestly and
undoubtedly be seen to be done”.
FACTS: 2 sets of proceedings (civil and criminal), both arising from a motorcycle crash. In the
civil proceedings, Whitworth was represented by law firm X. In the criminal proceedings, clerk to
justices was a partner in firm X. The issue here is that given the firm X represented Whitworth in
the civil case, could the Justices be biased against McCarthy in the criminal case?
HELD: Although no danger of actual bias (because Justices came to the conclusion without even
talking to this clerk, and clerk himself had scrupulously abstained from speaking due to his
overlapping role), the important question is did this appear suspicious?
On the basis of appearance of possible bias, criminal conviction was quashed.
1
, Evaluation: Is this a bit heavy handed? (Find literature?)
2 categories within rule against bias:
Automatic disqualification rule: Disqualification follows automatically if certain circumstances apply.
More contextual, perception-based test (now FMIO test): Disqualification only follows if fair-minded and
informed observer perceives a real possibility of bias.
Automatic disqualification
Preliminary
Jones, “Disclosure” rather than “Disqualification”
o Onus should be on DM to disclose, telling people what potential conflicts he or she has.
o Then the relevant party can waive their objection, or choose to have him or her disqualified.
o Ought we allow people to waive their objections?
Is it right to ask someone to potentially waive their objection when they might not know exactly
what that entails?
Dicta in Locabail (see below) answers this concern.
o Locabail (UK) v Bayfield Properties [2000]
Possibility of waiver
Dicta in Locabail which makes it clear that any waiver must be clear and unequivocal, made with
full knowledge of all the facts relevant to the decision whether to waive or not.
You can’t waive your right to object and then later object when you don’t get a result that you
like.
When does it apply?
1. If party to the case
2. If a financial interest in the outcome of the case
Dimes v The Proprietors of the Grand Junction Canal (1852)
i. FACTS: Lord Cottenham had financial interest in the outcome. He has financial stake in the
company that was a party to the case he was deciding.
ii. HELD: Decision was set aside because of his automatic DQ.
iii. Per Lord Campbell: No one can suppose that he could be influenced by the interest that he had in
this concern, but no one is to be a judge in his own cause (nemo iudex rule). Not confined to a
cause in which he is a party, but applies to a cause in which he has an interest.
Evaluation of Dimes automatic DQ rule
i. Justifications:
1. Potency of financial interest
a. It is inevitable that there will be an appearance of bias, if someone stands to gain
financially.
2. ‘Bright line’ rule
a. Any financial interest leads to automatic DQ.
b. Irt disclosure: It is a helpful rule for us when analysing the cases, but also a
helpful rule for DM’s in guiding their conduct. We want DM’s to know when
they should be recusing themselves from a decision. If they know, they know to
disclose it.
ii. Difficulties
1. Too simple, not accounting for the context?
a. If Lord Campbell himself stated that no one can suppose Lord Cottenham was in
the remotest chance influenced by his financial interest.
i. Doesn’t take account that Lord Cottenham is a judge, and may thus be
trusted to set aside his financial interest?
2
, ii. Doesn’t take account of how much that financial interest is actually
worth.
b. Olowofoyeku
i. If the purpose is to preserve public confidence, it may be that such
confidence would be compromised rather than enhanced if the public go
away feeling that justice was not done because of a mere technicality,
rather than because there was a real risk of injustice having occurred.
ii. “Draconian, disproportionate and unnecessary”—too blunt an instrument
that pays insufficient regard to policy considerations which point to a
more subtle approach
iii. Dimes could have been decided with the same result via FMIO route
rather than automatic DQ—do away with Lord Campbell’s doubtful
statement that “no one” would have reasonably suspected Lord
Cottenham to be biased.
iv. Perhaps esp. irt quashing criminal convictions: Would public favour a
more nuanced, subtle approach, rather than erring on the side of caution
against bias such that a criminal conviction is quashed by automatic DQ
w/o regard to size of financial interest, judicial context, etc.?
v. We also have the alternative, more contextual approach (see above),
hence Olowofuyeku argues that we can just use that rule, and do away
with automatic DQ.
vi. The “mechanistic adjudication smacks of abdication”.
c. Australian Federal Court in Ebner v Official Trustee in Bankruptcy [1999]
i. Doubted the need for automatic DQ test: If it is not caught by Australia’s
“reasonable suspicion” (FMIO) test, that means even the public did not
suspect that DM was biased, so where then is the rationale for automatic
DQ? Justice is indeed seen to be done anyway.
Pre-Locabail
i. R v Rand (1865-66), per Blackburn J
1. Any direct pecuniary interest, however small, does disqualify a person from acting as a
judge—triggers automatic DQ rule.
ii. R v Camborne Justices, ex p Pearce [1955], per Slade J
1. Affirms absence of de minimis rule in Rand
Locabail (UK) Ltd v Bayfield Properties Ltd [2000]
i. De minimis exception to automatic DQ rule
ii. Evaluation cf. Dimes: Lord Cottenham’s shares were worth several thousands £ (at that time, this
would have been several hundred thousand £). So perhaps a better justification for Dimes is not
that no one could suspect that he was biased, but that it actually did raise a question of propriety.
Although Lord Campbell was quite confident that Lord Cottenham could not have been
influenced by his interest, perhaps the great amount of money made a difference.
iii. FACTS: Locabail (L), a secured creditor, had given secure loan to Mr Emmanuel (EH). That loan
is secured to his properties. Mrs Emmanuel (EW) claimed she had a right to some of EH’s
properties. Sudoexport (S) are an unsecured creditor who had given another loan to EH. It would
have helped S if EW lost her case, because then there would have been more of EH’s properties
for them to claim out of. If EW wins, some of EH’s properties go to her. If EW loses, EH gets to
keep more properties, L gets paid first (because secured creditor), and S is unsecured (so they
only get what’s leftover).
1. The judge deciding EW’s case was also partner in Herbert Smith (H) and S were their
client. If S gets some of EH’s properties, they are more likely able to pay their bill to H,
which then benefits financially, the judge.
2. The judge could arguably be seen to be biased against EW.
3
Preliminary
Procedural fairness is a “motherhood statement” of administrative law (Groves)—i.e. so obvious that no one could
disagree with it, but which is imprecise and doesn’t give us precise normative reasons justifying judicial intervention
if a procedure is ‘unfair’.
2 main reasons:
Instrumental: Fairness as a means to an end
o Raji v General Medical Council [2003], per Lord Steyn
A procedural right of fairness will play an instrumental role in promoting just decisions.
I.e. Procedural fairness helps us to ensure a fair outcome.
Difficulty: When you can’t easily discern whether a certain procedural fairness (PF) requirement
secures a just outcome, in which case you might look at the normative reason.
Normative: Respecting the individual (i.e. PF is valuable in itself)
o Galligan
There is a link between bias (loss of impartiality) and the process of reasoning—financial interests
& personal feelings are improper considerations that should be left out of DM process.
Thus there is link between bias & fairness: On a principle level, bias attacks the idea that in any
legal context there are authoritative standards to apply. The DM process is rendered “illegitimate”
otherwise.
o Allan
In a democratic society, people are treated with dignity and respect.
o A particularly useful justification when a certain PF requirement doesn’t make a practical difference in
securing just outcome.
Requirements of PF:
Lloyd v McMahon, per Lord Bridge
o ‘The so-called rules of natural justice are not engraved on tablets of stone.’
o What PF demands will vary from case to case.
o Includes e.g. right to receive notice, right to make representations, providing reasons for a decision,
unbiased DM.
(A) RULE AGAINST BIAS
Objectives:
Factual claim: DM must be actually, factually, fair.
Appearance of fairness: We should be in no doubt that a DM was unbiased and fair.
o R v Sussex Justices, ex p McCarthy [1924], per Lord Hewart CJ
Famously sums up the distinction between actual bias and appearance of fairness.
It is “of fundamental importance that justice should not only be done, but should manifestly and
undoubtedly be seen to be done”.
FACTS: 2 sets of proceedings (civil and criminal), both arising from a motorcycle crash. In the
civil proceedings, Whitworth was represented by law firm X. In the criminal proceedings, clerk to
justices was a partner in firm X. The issue here is that given the firm X represented Whitworth in
the civil case, could the Justices be biased against McCarthy in the criminal case?
HELD: Although no danger of actual bias (because Justices came to the conclusion without even
talking to this clerk, and clerk himself had scrupulously abstained from speaking due to his
overlapping role), the important question is did this appear suspicious?
On the basis of appearance of possible bias, criminal conviction was quashed.
1
, Evaluation: Is this a bit heavy handed? (Find literature?)
2 categories within rule against bias:
Automatic disqualification rule: Disqualification follows automatically if certain circumstances apply.
More contextual, perception-based test (now FMIO test): Disqualification only follows if fair-minded and
informed observer perceives a real possibility of bias.
Automatic disqualification
Preliminary
Jones, “Disclosure” rather than “Disqualification”
o Onus should be on DM to disclose, telling people what potential conflicts he or she has.
o Then the relevant party can waive their objection, or choose to have him or her disqualified.
o Ought we allow people to waive their objections?
Is it right to ask someone to potentially waive their objection when they might not know exactly
what that entails?
Dicta in Locabail (see below) answers this concern.
o Locabail (UK) v Bayfield Properties [2000]
Possibility of waiver
Dicta in Locabail which makes it clear that any waiver must be clear and unequivocal, made with
full knowledge of all the facts relevant to the decision whether to waive or not.
You can’t waive your right to object and then later object when you don’t get a result that you
like.
When does it apply?
1. If party to the case
2. If a financial interest in the outcome of the case
Dimes v The Proprietors of the Grand Junction Canal (1852)
i. FACTS: Lord Cottenham had financial interest in the outcome. He has financial stake in the
company that was a party to the case he was deciding.
ii. HELD: Decision was set aside because of his automatic DQ.
iii. Per Lord Campbell: No one can suppose that he could be influenced by the interest that he had in
this concern, but no one is to be a judge in his own cause (nemo iudex rule). Not confined to a
cause in which he is a party, but applies to a cause in which he has an interest.
Evaluation of Dimes automatic DQ rule
i. Justifications:
1. Potency of financial interest
a. It is inevitable that there will be an appearance of bias, if someone stands to gain
financially.
2. ‘Bright line’ rule
a. Any financial interest leads to automatic DQ.
b. Irt disclosure: It is a helpful rule for us when analysing the cases, but also a
helpful rule for DM’s in guiding their conduct. We want DM’s to know when
they should be recusing themselves from a decision. If they know, they know to
disclose it.
ii. Difficulties
1. Too simple, not accounting for the context?
a. If Lord Campbell himself stated that no one can suppose Lord Cottenham was in
the remotest chance influenced by his financial interest.
i. Doesn’t take account that Lord Cottenham is a judge, and may thus be
trusted to set aside his financial interest?
2
, ii. Doesn’t take account of how much that financial interest is actually
worth.
b. Olowofoyeku
i. If the purpose is to preserve public confidence, it may be that such
confidence would be compromised rather than enhanced if the public go
away feeling that justice was not done because of a mere technicality,
rather than because there was a real risk of injustice having occurred.
ii. “Draconian, disproportionate and unnecessary”—too blunt an instrument
that pays insufficient regard to policy considerations which point to a
more subtle approach
iii. Dimes could have been decided with the same result via FMIO route
rather than automatic DQ—do away with Lord Campbell’s doubtful
statement that “no one” would have reasonably suspected Lord
Cottenham to be biased.
iv. Perhaps esp. irt quashing criminal convictions: Would public favour a
more nuanced, subtle approach, rather than erring on the side of caution
against bias such that a criminal conviction is quashed by automatic DQ
w/o regard to size of financial interest, judicial context, etc.?
v. We also have the alternative, more contextual approach (see above),
hence Olowofuyeku argues that we can just use that rule, and do away
with automatic DQ.
vi. The “mechanistic adjudication smacks of abdication”.
c. Australian Federal Court in Ebner v Official Trustee in Bankruptcy [1999]
i. Doubted the need for automatic DQ test: If it is not caught by Australia’s
“reasonable suspicion” (FMIO) test, that means even the public did not
suspect that DM was biased, so where then is the rationale for automatic
DQ? Justice is indeed seen to be done anyway.
Pre-Locabail
i. R v Rand (1865-66), per Blackburn J
1. Any direct pecuniary interest, however small, does disqualify a person from acting as a
judge—triggers automatic DQ rule.
ii. R v Camborne Justices, ex p Pearce [1955], per Slade J
1. Affirms absence of de minimis rule in Rand
Locabail (UK) Ltd v Bayfield Properties Ltd [2000]
i. De minimis exception to automatic DQ rule
ii. Evaluation cf. Dimes: Lord Cottenham’s shares were worth several thousands £ (at that time, this
would have been several hundred thousand £). So perhaps a better justification for Dimes is not
that no one could suspect that he was biased, but that it actually did raise a question of propriety.
Although Lord Campbell was quite confident that Lord Cottenham could not have been
influenced by his interest, perhaps the great amount of money made a difference.
iii. FACTS: Locabail (L), a secured creditor, had given secure loan to Mr Emmanuel (EH). That loan
is secured to his properties. Mrs Emmanuel (EW) claimed she had a right to some of EH’s
properties. Sudoexport (S) are an unsecured creditor who had given another loan to EH. It would
have helped S if EW lost her case, because then there would have been more of EH’s properties
for them to claim out of. If EW wins, some of EH’s properties go to her. If EW loses, EH gets to
keep more properties, L gets paid first (because secured creditor), and S is unsecured (so they
only get what’s leftover).
1. The judge deciding EW’s case was also partner in Herbert Smith (H) and S were their
client. If S gets some of EH’s properties, they are more likely able to pay their bill to H,
which then benefits financially, the judge.
2. The judge could arguably be seen to be biased against EW.
3
