Is Caesar’s Wife Above Suspicion?
Although the desirability of a separate category of interests warranting the automatic disqualification of a decision-maker has been questioned, a rule of automatic disqualification continues to apply in several prominent jurisdictions [1]. This rule is generally reserved for those cases which flagrantly violate the principle that nobody may be a judge in their own cause. The pecuniary interest on the part of the judge in the outcome of the proceedings has long been recognized as falling within this select group of cases [2].
However, despite the deep roots of this rule, there remains significant disagreement as to what sort of pecuniary interest constitutes a sufficient pecuniary interest. Particularly under-analyzed, by courts and commentators alike, is whether the financial interest of a person other than the decision-maker can trigger the automatic disqualification of the decision-maker. In order to offer some insight into this broad issue, this article addresses the narrower question of when the pecuniary interest of a decision-maker’s spouse automatically should disqualify the decision-maker.
Three alternative approaches will be considered. First, as suggested by De Smith’s Judicial Review, the leading treatise on judicial review in England and Wales, the pecuniary interest of a spouse may constitute an “exception” to the automatic disqualification rule and therefore be irrelevant when considering automatic disqualification [3]. This will be termed the “narrow approach.” Second, at the opposite end of the spectrum, a spouse’s pecuniary interest might be relevant in its own right and be treated as though it were the interest of the decision-maker. This will be termed the “broad approach.” Finally, the spouse’s pecuniary interest might be relevant only insofar as it evidences a pecuniary interest on the part of the decision-maker. This will be termed the “compromise approach.”
A two-part analysis will be adopted when evaluating each of the above three approaches. First, a jurisdiction which has adopted the specific approach will be identified. For the narrow approach, the approach to automatic disqualification in Australia prior to the ruling in Ebner v The Official Trustee in Bankruptcy, will be considered; for the broad approach, the current approach in the United States will be considered; and for the compromise approach, the approaches England and New Zealand will be considered [4]. This serves the useful function of illustrating how each of the three approaches might be employed in practice. Moreover, the way in which each approach is applied sheds useful light on some of the weaknesses and strengths associated with each approach. Second, the policy implications of the three approaches will be analyzed. This will be done by examining some of the arguments levied against the rule of automatic disqualification more generally and by evaluating workability of each of the three approaches within the broader context of judicial review for alleged bias. Ultimately, it will be argued that the more nuanced compromise approach in England and New Zealand represents the best way forward.
I. The Narrow Approach
Under the narrow approach, the pecuniary interest of a spouse can never automatically disqualify a decision-maker. As with the de minimis threshold to the automatic disqualification rule, the pecuniary interest of a spouse constitutes an exception to the general rule.
A. The Pre-Ebner Approach in Australia
Prior to the Australian High Court’s ruling in Ebner, Australian law recognized a rule of automatic disqualification for pecuniary interests [5]. Pre-Ebner, the question whether a spouse’s pecuniary interest is sufficient to disqualify a decision-maker was considered in R v Industrial Court [6]. In this case, Hanger J, President of the Industrial Court, allowed an appeal by Mount Isa Mines Ltd against an order of the Industrial Commission regarding the reemployment of its miners. This ruling was challenged on grounds of bias on the basis that Hanger J’s wife—but, importantly, not Hanger J—held 1,235 five shilling stock units in Mount Isa Mines Ltd. This challenge was rejected by the Queensland Supreme Court, which held that a judge whose wife had a pecuniary interest in the outcome of the case was not on that basis automatically disqualified. Instead, the real likelihood of bias test had to be applied in order to assess whether disqualification was justified [7].
The same conclusion was reached in the earlier Bank Nationalisation case [8]. Here, the issue arose from the fact that Starke J’s wife was a shareholder in one of the parties to the case. However, it was again held that, notwithstanding his wife’s pecuniary interest in the outcome, Starke J was not to be automatically disqualified [9]. Therefore, although Industrial Court and Bank Nationalisation are both quite dated, the limited Australian authorities seem generally opposed to recognizing a spouse’s pecuniary interest as sufficient to disqualify a decision-maker [10].
B. Policy Considerations
The narrow approach has two key policy advantages. First, the unqualified denial of relevance to a spouse’s pecuniary interest makes the narrow approach simple to apply. In an area of administrative law plagued by complexity and uncertainty, both in the application of the fair-minded and informed observer test and in the scope of the de minimis exception to automatic disqualification for pecuniary interests, an easy-to-apply standard would be welcomed by many [11].
Second, the narrow approach, by its very nature as an exception to the rule of automatic disqualification, limits the scope of the automatic disqualification rule. For many commentators, who increasingly see the rule of automatic disqualification as too blunt and draconian to properly regulate bias, such a limitation is a desirable further constraint on the operation of the rule [12]. This view is also increasingly shared by the courts. Many courts of last instance in commonwealth jurisdictions have done away with the bifurcated approach to bias entirely [13]. The English judiciary has also expressed its doubts about the operation of a rule of automatic disqualification. In R(Kaur) v Institute of Legal Executives Appeal Tribunal, Rix LJ commented that he was “somewhat sceptical that the two doctrines [of automatic disqualification and apparent bias] remain to this day separate doctrines” [14]. Instead, Rix LJ believed that it may be possible to see the two doctrines … as two strands of a single over-arching requirement: that judges should not sit or should face recusal or disqualification where there is a real possibility on the objective appearances of things, assessed by the fair-minded and informed observer … that the tribunal could be biased [15].
This growing pushback against an independent rule of automatic disqualification may make the narrow approach appealing. By qualifying the application of the rule of automatic disqualification, the rule becomes less “blunt” and “draconian” in its application. This not only allows the rule to be better tailored to specific cases, but also brings the rule closer to the test for apprehended bias.
However, the narrow approach also suffers from several weaknesses. First, its apparent simplicity comes at the risk of introducing further complexity to the application of the rule of automatic disqualification. This article has referred throughout to the “pecuniary interest of the decision-maker’s spouse.” A moment’s reflection, however, will reveal that the interest of a spouse is unlikely to be self-contained. If the decision-maker and spouse have shared finances, as many couples do, is a material financial interest held by the spouse only a pecuniary interest of the spouse? If the decision-maker’s spouse holds shares of one of the parties to the case, would this interest still be incapable of triggering automatic disqualification even if the dividends earned on those shares flowed into a joint bank account? What if the earnings went into the personal bank account of the decision-maker’s spouse, but the spouse then used these earnings to pay for the school tuition of the decision-maker’s children? As with the de minimis exception to automatic disqualification, the existence of an exception to the rule of automatic disqualification will force courts to make several difficult decisions regarding the scope of the exception. This is not to say that the narrow approach is unworkable; rather, in the context of messy real world financial arrangements, properly delimiting the narrow approach will lead the narrow approach to lose many of its perceived advantages. Ultimately, the value judgments courts will have to make when determining the scope of the “spouse exception” to the rule of automatic disqualification makes the narrow approach look much more like the compromise approach discussed below.
Second, even assuming that the policy advantages of a unitary test for bias outweigh those of a bifurcated approach, the limitation which the narrow approach imposes on the scope of the rule of automatic disqualification may also be undesirable. Although the narrow approach limits the scope of the rule, it does so by carving out a narrow area of non-applicability in relation to spousal interests. This stands in contrast to the general de minimis exception, which applies to all pecuniary interests. By introducing areas wholly exempt from the operation of the rule of automatic disqualification (not merely, as under the de minimis exemption, exempt to a degree) the narrow approach introduces further complexity into the law in this area. If the interests of the decision-maker’s spouse are exempt from the rule of automatic disqualification for pecuniary interests, then surely the interests of other parties—whose finances are typically less intertwined with those of the decision-maker—would be similarly exempt [16]. Courts would have to delimit the category of persons whose pecuniary interests would not have this disqualifying effect. Litigants seeking to have a decision set aside on grounds of a pecuniary interest held by a person associated with the decision-maker would have to first consider whether the person holding the interest fell within this category of exempt persons in order to determine whether automatic disqualification is a possibility. Therefore, rather than replace the bifurcated approach to bias with a unitary one, the narrow approach to the pecuniary interests of spouses would simply introduce an additional third category of pecuniary interests that do not demand automatic disqualification [17].
II. The Broad Approach
The broad approach treats the interests of the spouse as though they were the interests of the decision-maker. Since no distinction is drawn between the interests of the decision-maker’s spouse and the interests of the decision-maker, a more than de minimis pecuniary interest on the part of either is sufficient to demand automatic disqualification.
A. The Approach in the United States
The broad approach has been adopted, via statute, in the United States. Section 455(b)(4) of Title 28 of the U.S. Code provides that any justice, judge, or magistrate judge of the United States shall disqualify himself where:
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding [18].
The Code does not distinguish between the interests of the decision-maker and the interests of the decision-maker’s spouse. If a spouse has a relevant pecuniary interest in the case, the decision-maker is disqualified without the added requirement that the spouse’s pecuniary interest is also an interest of the decision-maker or might influence the decision-maker’s ruling [19].
B. Policy Considerations
The broad approach has several policy advantages. First, it is arguably more in line with the changing reality surrounding the financial holdings of a decision-maker’s spouse. The historically predominant financial and familial arrangements where a male judge often acted as sole breadwinner for a household no longer reflects the modern reality. As the U.S. Ninth Circuit Court of Appeals in In re Cement Antitrust Litigation already recognized in 1982 when interpreting 28 U.S.C. § 455(b)(4),
The judge may be unable to control the financial holdings or investment activities of a spouse. The day has passed when a husband can order his wife to arrange her financial affairs to suit his convenience. As increasing numbers of women establish careers, the likelihood that judges’ wives will insist on asserting the right to maintain independent judgment and control over their investments also increases [20].
Historically the independent financial interests of the judge’s spouse, if they existed, would likely have been relatively minor; this may have justified an approach to such interests that treated such interests as generally unlikely to affect the judge’s decision-making. However, as two-income households become increasingly common and, importantly, as greater numbers of women assume the role as joint or sole breadwinners for the family, this traditional distinction between the interests of the decision-maker and the interests of the decision-maker’s spouse may no longer be justifiable. Moreover, as was discussed above with respect to the narrow approach, two separate income streams may not be easily distinguishable. By treating the financial interests of a decision-maker’s spouse in the same way as the financial interests of the decision-maker, the broad approach recognizes that the spouse’s financial interests may be just as significant to the judge’s personal affairs as his own financial interests.
A second policy advantage of the broad approach is that it avoids the difficulty of carving out the scope of a new exception to the rule of automatic disqualification. Since a single test governs, courts can draw from a larger body of precedent to determine whether a spouse’s pecuniary interest automatically disqualifies a decision-maker [21].
However, several factors weigh against adoption of the broad approach. First, from a practical standpoint, it seems that there is currently little appetite for such an expansion of the automatic disqualification rule in many jurisdictions. As discussed above, academic and judicial opinion seems to be increasingly against a rule of automatic disqualification for pecuniary interests; an attempt to broaden the rule to require automatic disqualification of a decision-maker for the pecuniary interest of a spouse would be unlikely to be met with much support.
Second, because it singles out a specific group, the broad approach also suffers from an uncertain scope. Why draw the line at spousal interests? Would the interest of a parent or child also automatically disqualify [22]? Under U.S. law, for example, a judge is disqualified where a “minor child residing in his household … has a financial interest in the subject matter in controversy or in a party to the proceeding” [23]. By adopting a strict rule in favor of recognizing the pecuniary interest of a decision-maker’s spouse as automatically disqualifying the decision maker, the broad approach requires courts or (more likely) the legislature to come to a difficult conclusion regarding where the line should be drawn. More importantly, this strict rule also means that the broad approach may, in some cases, result in the automatic disqualification of a decision-maker even though no reasonable person would have suspected that they were biased. Of course, this critique may be levelled against the rule of automatic disqualification more generally [24]. If the concern is that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”, then it seems odd that the law would require the disqualification of a decision-maker even where no reasonable layperson would reasonably suspect that the decision-maker was biased [25]. However, this criticism would apply with even greater force if the broad approach were adopted. The very fact a decision-maker under this approach is automatically disqualified not only for his own pecuniary interest but also for those of his/her spouse increases the chances that a decision-maker is disqualified in circumstances where no bias existed and where no bias was perceived to have existed [26]. If we make the additional, reasonable assumption that a decision-maker is, all else equal, more likely to be biased by his/her own financial interests in the outcome of a case than by the financial interests of another person, then the introduction of automatic disqualification of a decision-maker for the pecuniary interests of another under the broad approach appears even more problematic.
Third, as is evident from the way in which the broad approach has been applied in the U.S., application of the broad approach may necessitate the incorporation of a “state of mind” requirement focused on the decision-maker’s knowledge (or lack thereof) of the spouse’s pecuniary interest. Without such a requirement, the decision-maker would be disqualified, and the decision set aside, for any pecuniary interest held by his/her spouse, irrespective of the decision-maker’s knowledge that any such interest existed at the time the decision was made. This would open the law up to significant abuse. For example, without any consideration of the decision-maker’s knowledge, a decision-maker could be disqualified for a spouse’s financial interest unknown both to the decision-maker and the parties at the time of the decision. This would be the case notwithstanding the fact that the decision-maker could never have been influenced by that pecuniary interest (since the decision-maker did not know that any such pecuniary interest existed). To mitigate the issue of disqualification without suspicion of bias discussed above, some mental element requirement would appear necessary under the broad approach.
However, imposing such a state of mind requirement comes with its own problems. If the law is to treat the pecuniary interest of a decision-maker’s spouse in the same way as the pecuniary interest of the decision-maker, then this mental element requirement would also limit the cases in which the pecuniary interest of the decision-maker himself/herself would automatically disqualify. This may have significant unintended consequences. If the automatic disqualification of a decision-maker for a pecuniary interest in the outcome of a decision could be avoided where the decision-maker had no knowledge of the pecuniary interest, this would introduce a whole new layer of argument to all such cases. If the defense could demonstrate that the relevant decision-maker was unaware of their own financial interest, they would successfully defeat any judicial review claim on grounds of bias. Alone the possibility that such a defense may succeed, as well as the potential added litigation costs, may discourage well-founded claims for judicial review. Moreover, in many jurisdictions, including England, such a mental element requirement is entirely foreign to the law on bias [27]. Imposing such a requirement would force the judiciary to embark on an analysis quite different from that which they usually conduct and in which they have little experience.
III. The Compromise Approach
The compromise approach is distinct from the narrow and broad approaches in that the relevance of a pecuniary interest of a spouse cannot be determined without considering contextual factors. The relevance of the spouse’s interest (or lack thereof) must be evaluated on a case-by-case basis: the automatic disqualification rule is only engaged where the pecuniary interest of the decision-maker’s spouse results in the decision-maker acquiring an interest in his own right.
A. The Approach in England
A rule of automatic disqualification continues to be applied by the courts of England and Wales [28]. The way in which the interests of persons associated with the decision-maker affect the application of the automatic disqualification was considered, obiter, in Locabail (UK) Ltd v Bayfield Properties Ltd:
In any case where the judge's interest is said to derive from the interest of a spouse, partner or other 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 [29].
Here the Lord Chief Justice is restricting the potential impact of a spouse’s pecuniary interest by applying a de minimis threshold. However, this de minimis threshold for the relevance of a spouse’s pecuniary interest is more difficult to satisfy than the threshold for the relevance of a decision-maker’s own interest. Whereas the de minimis threshold for the relevance of a spouse’s pecuniary interest will only be crossed where that interest is “so close and direct” as to be “indistinguishable” from the interest of the decision-maker, an interest only falls below the de minimis threshold for the relevance of a decision-maker’s own interest where it is “so small as to be incapable of affecting his decision one way or the other” [30].
The differences between these two thresholds is evident from the placement of the adverb “so.” When setting out the de minimis threshold for the relevance of the spouse’s pecuniary interest, the Lord Chief Justice uses the word “so” to emphasize the extent of the necessary “closeness” and “directness” for the pecuniary interest to automatically disqualify. When setting out the threshold for the decision-maker’s own pecuniary interest, the word “so” is used to emphasize how small the interest must be in order to not trigger automatic disqualification. Therefore, although he does not suggest that the pecuniary interest of a spouse can never automatically disqualify a decision-maker, the Lord Chief Justice does suggest that such an interest will not frequently have this effect.
The Locabail approach was explicitly applied in R (on the application of United Cabbies Group (London) Ltd v Westminster Magistrates Court [31]. Here, the decision by Senior District Judge Emma Arbuthnot to grant a London Private Hire Vehicle Operator’s License to Uber was challenged by the United Cabbies Group (London) Ltd (“UCG”). UCG alleged that the Senior District Judge was biased by virtue of her husband’s involvement with Uber. In rejecting this ground of UCG’s challenge, the Lord Chief Justice quoted the above extract from Locabail before adding that “[t]he fair-minded observer does not assume that the interests of husband and wife are indistinguishable. They are not” [32]. This added reference to the fair-minded observer seems slightly out-of-place in a discussion of automatic disqualification under the heading “Presumed Bias” [33]. Important for present purposes, however, is that the obiter comment in Locabail was understood to accurately reflect the law; because UCG had failed to demonstrate that the interest of the Senior District Judge’s husband was “so close and direct as to render [it] … indistinguishable” from the interest of the Senior District Judge herself, automatic disqualification was not warranted in this case [34]. The currently favored approach in England and Wales is therefore that the pecuniary interest of a spouse can automatically disqualify a decision-maker, but need not necessarily do so [35].
B. The Approach in New Zealand
Support for the compromise position can also be found in New Zealand. Like Australia, New Zealand moved away from a strict application of the rule of automatic disqualification for pecuniary interests in Muir v Commissioner of Inland Revenue [36]. Prior to Muir, however, several authorities had accepted automatic disqualification for pecuniary interest [37]. The issue whether the pecuniary interest of a spouse can suffice in order to trigger this automatic disqualification rule arose in Collinge v Kyd [38]. Although the case was concerned with private law on trusts, the High Court considered the public law cases on bias by analogy. Mr.Collinge was a trustee of the Auckland Energy Consumer Trust, which was the sole shareholder of Vector Limited. Vector Limited required the approval of Auckland Energy Consumer Trust for a proposed project and, as a trustee of the Trust, Mr. Collinge would be required to vote on this matter. Auckland Energy Consumer Trust’s deed of trust denied trustees the right to vote on issues in which the trustee was “materially interested.” Vector Limited required the approval of the Auckland Energy Consumer Trust for a proposed project. Mr. Collinge’s wife held 75,000 bonds in Vector Limited and a further 125,000 was held by a family trust, owned for the benefit of Mr. Collinge’s wife and children. Had Mr. Collinge owned the bonds himself, he would have been in the top 1.1% of bondholders in Vector Limited—giving him more than a de minimis interest in the outcome of the vote. The vexed issue was therefore whether the fact that the bonds were instead held by Mrs. Collinge and the family trust made the situation materially different. Regarding Mrs. Collinge’s holdings, the High Court held that the interests of a spouse may create an interest for the decision-maker [39]. This decision has been cited as evidence that the pecuniary interest of a spouse can automatically disqualify a decision-maker [40].
C. Policy Considerations
The flexible nature of the compromise approach allows this approach to respond to individual circumstances. Rather than categorically treating the pecuniary interest of a decision-maker’s spouse as wholly irrelevant to the automatic disqualification of the decision-maker (the narrow approach) or as equally relevant to automatic disqualification as the pecuniary interest of the decision-maker himself/herself (the broad approach), the compromise approach allows the courts to consider a wider range of potentially relevant factors. For example, a court may decide that the pecuniary interest of an estranged spouse does not trigger automatic disqualification while the pecuniary interest of a spouse on whom the decision-maker is financially dependent does. This flexibility would also result in fewer cases where a court must find that a decision-maker must be automatically disqualified on the basis of his/her spouse’s pecuniary interest but where no reasonable member of the public could have suspected any bias on the part of the decision-maker.
Opponents to the compromise approach may argue that the flexibility of this approach gives the courts too much free reign when determining whether the pecuniary interest of a decision-maker’s spouse should automatically disqualify the decision-maker. It is true that, under the compromise approach, any and all circumstances may, in theory, be relevant to the resolution of the case. However, in reality, the compromise approach is guided by a two-part test which ensures that application of this approach is not as unprincipled as may initially appear to be the case.
First, the court must consider the nature of the spouse’s pecuniary interest. This focuses the court’s attention on the same concerns that are relevant when determining whether a decision-maker’s own pecuniary interest may be too “tenuous” to warrant automatic disqualification in England [41]. It is therefore a general test that relies on the rational assumption that, all else equal, the greater the extent of the spouse’s interest, the more likely it is to undermine the ability of the decision-maker to focus purely on the merits of the case [42].
Second, the court must consider the connection of the spouse’s pecuniary interest to the decision-maker. This focuses the court’s attention on the connection between the spouse’s interest and the decision-maker. Clearly, the closer the connection, the more likely it is that the pecuniary interest of the spouse is also a pecuniary interest on the part of the decision-maker and therefore results in the decision-maker’s automatic disqualification. Under this second factor, a number of considerations may be relevant. For example, the organization of the couple’s finances bears on the relevance of a spouse’s pecuniary interest. If the couple’s finances are so entangled that neither the decision-maker nor the spouse can truly be said to have, in practice, sole control of the interest, a court is likely to conclude that a pecuniary interest of the spouse suffices to automatically disqualify a decision-maker [43]. In contrast, when both partners lead financially independent lives, it seems unlikely that a spouse’s pecuniary interest would constitute a pecuniary interest of the decision-maker so as to automatically disqualify them [44]. The purpose for which the spouse’s pecuniary interest is held may also influence the court’s reasoning on the connection issue. For example, where a decision-maker’s spouse owns shares in a “college fund” dedicated towards paying for the education of the children of the spouse and the decision-maker, this interest is more likely to be identified as indistinguishable from the interest of the decision-maker. Therefore, where a spouse holds an asset with the clear purpose of contributing to a cause in which the decision-maker is also interested, courts will be more open to mandating automatic disqualification on the basis of the spouse’s interest. This is not meant to be an exhaustive list of relevant factors under this part of the test. Future case law would undoubtedly further refine the above factors and identify additional ones.
The above two-stage analysis and its guiding subcomponents helps to ensure that the added flexibility of the compromise approach does not come at the loss of sufficient certainty. In light of the advantages offered by the compromise approach, as well as the shortcomings of the two alternative approaches discussed above, the compromise approach offers the best way forward.
Conclusion
This article has addressed the question “when should the pecuniary interest of a decision-maker’s spouse result in the automatic disqualification of the decision-maker?.” Three different approaches and associated jurisdictions were identified and contrasted. First, under the narrow approach, the pecuniary interest of a decision-maker’s spouse never of itself results in automatic disqualification of the decision-maker. Some support for this approach can be found in the pre-Ebner Australian authorities. It was argued, however, that this approach is unworkable in practice and unsatisfactory in its further complication of the law. Second, under the broad approach, the pecuniary interest of a decision-maker’s spouse is always treated as a pecuniary interest of the decision-maker. This approach, which finds some support in the United States, suffers from an uncertain scope and necessitates the adoption of a problematic state of mind test. Therefore, this article has argued in favor of the third and final approach: the compromise approach. Under this approach, which finds support in English and New Zealand authority, courts are granted greater discretion to determine whether or not the pecuniary interest of a decision-maker’s spouse should result in automatic disqualification. Only in those cases where the court is convinced that, in all the circumstances, the pecuniary interest of the decision-maker’s spouse amounts to an interest on the part of the decision-maker, will the automatic disqualification rule be triggered. By enabling (indeed, requiring) courts to consider contextual factors, the compromise approach avoids the issues associated with the inflexibility of the narrow and broad approaches. Moreover, concerns that this approach imbues the judiciary with too much discretion are adequately mitigated by the adoption of a two-stage test which helps to ensure that courts adhere to a unified approach in their reasoning.
References
[1] See, in particular, Abimbola A. Olowofoyeku, ‘The nemo judex rule: the case against automatic disqualification’, P.L. 2000, Aut, 456–475. The rule of automatic disqualification was most recently affirmed in England and Wales by the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119; in the United States, Title 28 U.S. Code § 455(b)(4)–(5) mandates disqualification of a decision-maker in certain specified circumstances (discussed below).
[2] See, for example, Thomas Bonham v College of Physicians (1610) 8 Co Rep 114 (Dr Bonham's Case); see also the Earl of Derby’s Case (1613) 12 Co Rep 114.
[3] De Smith’s Judicial Review (8th Ed) [10-029].
[4] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[5] Dickason v Edwards (1910) 10 CLR 243, 259; Webb v The Queen (1994) 181 CLR 41, 75; Ex parte Armstrong (1976) 136 CLR 248, 263; Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168, 183–185. The foundational case in England is Dimes v The Proprietors of the Grand Junction Canal 10 ER 301.
[6] R v Industrial Court [1966] Qd.R. 245; cited with apparent approval on this point by Kirby J in Ebner (n 6) at [128].
[7] Ultimately, the Court held that there was no real likelihood of bias and that Hanger J was therefore not disqualified from sitting.
[8] Bank of NSW v The Commonwealth (1948) 76 CLR 1, unreported on this point; cited in R v The Industrial Court (n 8), 279–80. Bank of NSW v The Commonwealth was cited with approval on this point by Kirby J in Ebner (n 6) at [128].
[9] Summarized in Ebner (n 6) at [128] (Kirby J).
[10] It is worth noting that the Australian Committee on Inquiry commented in 1979 that “[i]n England, it has been assumed that the disqualification [for a pecuniary interest] applies whether the shares are the judge's personal holdings or those of his spouse”: Report of the Committee on Inquiry, Public Duty and Private Interest, July 1979, [11.6]. No authority is cited for this statement.
[11] In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, the Court of Appeal was of the view that the de minimis exception to the automatic disqualification rule should be limited to cases where “the potential effect of any decision on the judge's personal interest is so small as to be incapable of affecting his decision one way or the other; but it is important, bearing in mind the rationale of the rule, that any doubt should be resolved in favour of disqualification”: [10].
[12] Matthew Groves, ‘The Rule against Bias’, [2009] Monash University Law Research Series 10, 504. Olowofoyeku (n 1) 475.
[13] In Australia, the High Court in Ebner (n 6) held that there was no rule of automatic disqualification, calling such a rule “anomalous”: [54]. In Canada, a unified “reasonable apprehension of bias” test is applied (see, for example, Mr. Justice de Grandpré in Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369 at 394); while the Canadian Supreme Court in Wewaykum Indian Band v Canada (No. 2) [2003] 2 SCR 259 did not explicitly reject the possibility that the reasoning by the House of Lords in Pinochet (n 2) might be applicable in Canada, it did comment that “[w]hatever the case in Britain, the idea of a rule of automatic disqualification takes a different shade in Canada, in light of our insistence that disqualification rest either on actual bias or on the reasonable apprehension of bias, both of which, as we have said, require a consideration of the judge’s state of mind”: [72]. In New Zealand, the Court of Appeal in Garry Albert Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 declined to make a ruling as to whether a rule of automatic disqualification continued to be recognized since the issue had not been fully argued before the Court. However, the Court did comment that if “a judge has a direct pecuniary interest of anything more than the most minimal character, it is hard to see how the reasonable observer would not consider that to be bias”, and went on to state that “no harm, and a great deal of good, in terms of the understandability of the law, would be done by a unitary principle”: [42].
[14] R(Kaur) v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168. And [44].
[15] ibid [45]. Indeed, Rix LJ declined to choose between the two doctrines when deciding the case: [46]. Lord Hope in Meerabux v Attorney General of Belize [2005] UKPC 12 also suggested that the ruling in Pinochet (n 2) could also have been reached by applying the fair-minded and informed observer test: [22]. The expansion of the rule of automatic disqualification in Pinochet (n 2) has also been met with significant criticism; see Philip Havers & Owain Thomas, ‘Bias Post-Pinochet and Under the ECHR’, Judicial Review, 4:2, 111–117; Groves (n 15).
[16] For example, the pecuniary interests of a fiancée or of a relative, such as a child or parent.
[17] It is further arguable that, by carving out areas from the rule of automatic disqualification for pecuniary interests, the narrow approach arguably makes this rule more palatable for the judiciary. Since the rule would, if the narrow approach were adopted, only disqualify a decision-maker for the decision-maker’s own pecuniary interests, the rule of automatic disqualification for pecuniary interests is limited to a narrower set of cases. Limited in scope in this way, the rule becomes less intrusive and, consequently, becomes easier to defend against criticisms that it is too blunt or draconian. In an attempt to limit the scope of the rule of automatic disqualification, proponents of the narrow approach may be inadvertently saving the rule from more radical overhaul. Those who wish to see the rule of automatic disqualification overthrown entirely may therefore be better off opposing the narrow approach.
[18] 28 U.S. Code § 455(b)(4) (emphasis added). Individual State rules are often quite similar. See, for example, Rule 2.003(B)(5) of the Michigan Rules of Court, which provides that a judge is disqualified if “(5) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding” (emphasis added).
[19] See also Section 203 of the Quebec Code of Civil Procedure, which provides that “A judge who has an interest or whose spouse has an interest in a case is disqualified and cannot hear the case” (emphasis added).
[20] In re Cement Antitrust Litigation 688 F.2d 1297 (9th Cir.). 1314–15.
[21] For authorities considering the application of the de minimis exception to automatic disqualification of the decision-maker for the decision-maker’s own pecuniary interest, see, inter alia, Locabail (n 14), Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA); R v McKenzie [1892] 2 QB 519; Kelton v Wiltshire Council [2015] EWHC 2853 (Admin); R v Mulvihill [1990] 1 WLR 438.
[22] For example, the pecuniary interest of the father in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577.
[23] 28 U.S. Code § 455(b)(4).
[24] See Olowofoyeku (n 1).
[25] R v Sussex Justices, ex p McCarthy [1924] 1 KB 256, 259 (emphasis added). Ebner (n 6) [37].
[26] And, potentially, other close relations.
[27] As the Lord Justice-Clerk in Robbie The Pict v Her Majesty’s Advocate has stated, it is the “objective appearance of impartiality” that is relevant when evaluating disqualification for apparent bias: [24].
[28] Most recently affirmed by the House of Lords in Pinochet (n 2).
[29] Locabail (n 14). [10].
[30] ibid.
[31] R (on the application of United Cabbies Group (London) Ltd v Westminster Magistrates Court [2019] EWHC 409 (Admin).
[32] Locabail (n 14) [10], cited at UCG (n 39) [36]. UCG (n 39) [36].
[33] It appears that the court considered cases demanding automatic disqualification to be those cases where the fair-minded and informed observer would invariably, and irrefutably, presume there to be a real possibility of bias under the test in Porter v Magill [2001] UKHL 67. Although this conception of the rule of automatic disqualifications may have few direct practical implications, it does evidence a shift towards a unitary test of bias (discussed further below).
[34] Locabail (n 14) [10].
[35] The potential relevance of the connection of a decision-maker’s spouse to a case was also noted by David Hume in the Commentaries on the Law of Scotland, Respecting Crimes (1844). Hume noted that “[i]t was nothing unusual formerly, to have an assizer rejected, (ordained to stand aside, as the style was) because, or perhaps his wife, was second or third cousin, seconds and thirds as they called it, to the prosecutor” (emphasis added): S.J. Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Hart 2007), 30. The fact that a family connection between the wife of an assizer and the prosecutor may result in the assizer being rejected lends further support to the suggestion that the interest of a spouse may be relevant to automatic disqualification.
[36] Muir (n 17). See also Tipping J’s obiter comment in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72 at [42] that “there should no longer be any distinction between cases in which the allegation of apparent bias rests on financial interest as against those involving other matters. The same test should apply generally.” Although the Court of Appeal declined to explicitly adopt a unitary approach to bias, the Court recognized that “there are powerful arguments for simplicity and straightforwardness in this area of law” and that “no harm, and a great deal of good in terms of the understandability of the law, would be done by a unitary principle” (at [42]).
[37] See, for example, Anderton v Auckland City Council [1978] 1 NZLR 657 (SC); Simmonds v Fortune HC Christchurch M700/79, 5 February 1982; NZI Financial Corp Ltd v New Zealand Kiwifruit Authority [1986] 1 NZLR 159 (HC); Jeffs v New Zealand Dairy Production and Marketing Board [1966] NZLR 73 (CA).
[38] Collinge v Kyd [2005] 1 NZLR 847 (HC).
[39] Similarly, although the bonds held in the family trust were not held for Mr. Collinge’s personal benefit, the High Court held that the fact that Mr. Collinge had been a trustee shortly before the case established the necessary nexus.
[40] George Niven, ‘One Rule to Rule Them All: A Unitary Standard of Bias in Judicial Review’, University of Otago (2016), 4.
[41] Locabail (n 14) [50].
[42] This sort of “second de minimis threshold” analysis was adopted in UCG (n 39) (discussed above).
[43] As might be evidenced, among other things, by joint bank accounts or joint interests in property.
[44] Of course, most cases will fall between these two extremes; it will be up to the court to weigh all the factors to decide whether the automatic disqualification rule is engaged.