Philip Kolvin QC examines the High Court’s decision in R (United Cabbies Group) v Westminster Magistrates’ Court to dismiss the claimant’s application for judicial review of a district judge’s grant of an operator’s licence for London private hire vehicles to the third interested party, Uber.
The court found that the judge’s decision had not been tainted by presumed or apparent bias due to her husband’s alleged relationship to Uber.
R (on the application of United Cabbies Group (London) Ltd) v Westminster Magistrates’ Court  EWHC 409 (Admin)
What are the practical implications of the judgment?
The case demonstrates that practitioners advising on presumed and apparent bias have to pay close attention to the tests which have been set out authoritatively by the courts on many occasions and consider whether - on the evidence - those tests are met. While the claimant tried to place reliance on the considerable public interest in the case, this is not a warrant for applying a different test. The judgment re-emphasises that the rules of bias are clear and robust and will yield the right answer once the facts have been established. The law is not difficult to interpret. Rather, it is a question of applying the law to the facts which have been proved.
What was the background?
The judge was considering Uber’s appeal against a decision of the first interested party, Transport for London, to refuse it an operator’s licence. The judge allowed the appeal and granted Uber a licence for a period of 15 months.
The claimant, a trade association which had not been involved in the case previously, brought a claim for judicial review claiming that the fact that the judge’s husband was a consultant to an advisory company which had advised an investor in Uber, albeit not about Uber, demonstrated presumed or apparent bias on the part of the judge, even though at the time she had not known of any connection at all.
What did the court decide?
The court focused on two different types of separation. The first was the separation between the judge’s husband and Uber. The second was the separation between the judge and her husband. In neither case did the court make new law regarding the prerequisites for presumed or apparent bias - rather it applied the existing law to the facts.
Link between the judge’s husband and Uber
The pleaded case was that the judge’s husband was a former director of, and current consultant to, an advisory company that advised an investor which had invested in Uber, although he had never advised the investor or anyone else about Uber.
For this to amount to presumed bias, the classic test expressed in Grand Junction Canal v Dimes (1852) 3 HL Cas 759 is that there needs to be a direct pecuniary or proprietary interest in the outcome of the case. Neither the pleaded case nor the evidence came anywhere near satisfying that test. According to the court at paragraph  of the judgment: ‘The link between Uber’s global prosperity and [the husband’s] remuneration is tenuous, to say the least. He had not advised [the investor] regarding Uber. In those circumstances it is difficult to see how he could have a direct financial interest in the outcome of the [case heard by his wife].’
For the alleged connection to amount to apparent bias, it would need to satisfy Lord Hope’s well-established test in Porter v Magill  UKHL 67,  1 All ER 465 that ‘the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’. In this case, the claimant faced an additional obstacle, which was that it did not contest the judge’s statement that she had no idea about the alleged connection between her husband and Uber. Lack of knowledge is generally acknowledged to be sufficient to allay any suspicion on the part of a fair-minded observer since judges cannot be biased by reason of facts of which they know nothing (see Locabail (UK) Ltd v Bayfield Properties Ltd  1 All ER 65).
The claimant tried to overcome that impediment by two arguments. First, it relied on the fact that once the alleged link had been published in a national newspaper, the judge stepped down from hearing further Uber cases which, it said, amounted to an admission of apparent bias. Second, it maintained that the judge had a duty to exercise due diligence by checking with her husband whether he had any link with either party, given the public importance of the case. Both of these arguments were rejected.
As to the first, the court held that the judge was merely taking a precautionary approach once she knew of the allegation, it did not make her biased before she knew of it (para ).
As to the second, and the alleged duty of inquiry, this had been scotched in Locabail itself - a fair-minded observer reaches a conclusion based on what the facts demonstrate the judge knew, not what the judge might have found out. The court stated that to impose a duty on the judiciary to quiz their family members was unsupported by any authority and would impose an unnecessary and onerous burden on judges (para ).
Link between judge and her husband
Links of this nature are governed by the judgment of Lord Bingham MR in Locabail, in which he stated that in any case where the judge’s interest was said to derive from the interest of a spouse, partner or other family member, the link had to 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’. This is no mere formality. It is not enough that there is a link - it must be such a close link as to render the interest of one spouse indistinguishable from the interest of the other. In this case, the court did not consider that there was evidence of such a link, stating at para : ‘We do not consider that the facts even begin to show that there was a link between the judge’s interest and the interest of her husband ‘’so close and direct’’ as to render the interest of her husband indistinguishable from her interest.’
The court’s conclusion
In summary, there were two hurdles for the claimant to surmount. It needed to show the requisite link between the judge and her husband and also the requisite link between her husband and Uber. It failed at both hurdles.
The court concluded that there was no presumed bias because the judge’s husband had no direct or pecuniary interest in the outcome of the case. Aditionally, there was no apparent bias because the judge had not known of any link, which amounted to a complete answer. The fact that she subsequently stood down from hearing other cases involving Uber was simply precautionary behaviour - it did not mean that she was apparently biased before she knew of the alleged link. Nor did she have any duty of inquiry.
Philip Kolvin QC of Cornerstone Barristers appeared for Uber, the third interested party in this case.
Interviewed by Robert Matthews. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.