B e f o r e :
THE MASTER OF THE ROLLS (Lord Denning)
LORD JUSTICE DANCKWERTS
and
LORD JUSTICE EDMUND DAVIES.
IN THE MATTER of the RENT ACT, 1963 and
IN THE MATTER of the TRIBUNALS AND INQUIRIES ACTS 1958 to 1966
and the TRIBUNALS AND INQUIRIES (RENT ASSESSMENT COMMITTEE) Order 1965 (S.I. 1965 No. 2131
and
IN THE MATTER of a DECISION of JOHN LANNON, ERIC TROTMAN and
MARGARET COCKBURN members of a COMMITTEE Of THE LONDON RENT ASSESSMENT PANEL given on 26th April 1967
and
IN THE LATTER of Flats 31, 60A and 6l OAKWOOD COURT, LONDON W.14
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Between:
Mr. JOHN LANNON
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METROPOLITAN PROPERTIES COMPANY (F.G.C.) LIMITED
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Appellants
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and
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Mr. JOHN LANNON
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Respondent
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METROPOLITAN PROPERTIES COMPANY (F.G.C.) LIMITED
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Appellants
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and
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RICHARD KITZINGER and W.F. HOLMES (Male) and C.J. ZENKER (Male)
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Respondents.
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C. 2.)
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Mr. F. LAYFIELD, Q.C., and Mr. S. RICH (instructed by Messrs. Grangewood Allan & Co.) appeared on behalf of the Appellants.
Mr. G. SLYNN (instructed by the Solicitor, Ministry of Housing) appeared on behalf of the Tribunal on the certiorari proceedings and as amicus curiae on the statutory appeal.
Mr ASHLEY BRAMALL (instructed by Messrs. Kenneth Brown Baker Baker) appeared on behalf of Mr. Zenker.
Mr KITZINGER appeared in person.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
THE MASTER OP THE ROLLS: This case is brought to determine the rents of the flats in Oakwood Court, West Kensington. It is concerned particularly with three flats in a block built 40 years ago, namely, Nos. 31, 60A and 6l Oakwood Court. Once the rents of those three flats are determined, they will form a guide in determining the rents, not only of the other flats in Oakwood Court, but also of numerous flats in the neighbourhood. They may also be used as a comparison in determining the rents of other flats in different areas of London.
The procedure for determining rents is laid down by the Rent Act of 1965. The Rent Officer for the area first determines a fair rent. He is usually a valuer appointed by the local authority. If either party objects to his figure, he can appeal to the Rent Assessment Committee. This is a Committee which consists of a lawyer member (who is Chairman), a valuer member, and a lay member. The Rent Officer is thus a tribunal of first instance. The Rent Assessment Committee is an appeal tribunal.
Oakwood Court used to be owned by an insurance company, but in February 1966 it was bought by Metropolitan F.G.C. Ltd., which is one of the Freshwater Group of Companies. That Group owns a great number of blocks of flats in London, usually through wholly-owned subsidiaries. So much so that the "landlords" of all these blocks are regarded as the "Freshwater Group*'. That is the name they use themselves and the name by which they are generally known.
Soon after the Freshwater Group took over Oakwood Court they proposed to increase the rents of the flats. Some of the tenants applied to the Rent Officer to register a "fair rent" under the Rent Act of 1965. These were the tenants of Nos. 31, 60A and 61 Oakwood Court. The Rent Officer fixed what he thought were fair rents. The Freshwater Group appealed to the Rent Assessment Committee. That Committee made drastic reductions in the rents. They put the fair rent at figures which were far lower than the contractual rents, far lower then any of the experts stated, and lower, indeed, than the tenants themselves had offered. The tenants were, no doubt, much gratified by the result. But the Freshwater Group took the case to the Divisional Court. At first the Freshwater Group complained only that the Rent Assessment Committee had gone wrong in point of law in various respects. But later on they found out other facts and made a complaint against Mr. John Lannon, the Chairman of the Rent Assessment Committee. They alleged that he was disqualified. He could not have given them, they said, an unbiased hearing. He was a solicitor living in another block of flats owned by the Freshwater Group. It was Regency Lodge, Swiss Cottage, owned by Avenue (Properties) (St. John's Wood) Ltd., which was a wholly-owned subsidiary of the Freshwater Group. The flat in which the Chairman lived was No. 55 Regency Lodge. His father was the tenant and was in dispute with the Freshwater Group. The Freshwater Group say that the son was assisting and advising his father in that dispute, and he did so at or about the time when he was about to sit as Chairman of the Rent Assessment Committee. On that account the son, they said, ought not to have sat on the flats in Oakwood Court: and they were confirmed in their view by the "startling" decision to which the Committee came. This complaint needs careful consideration.
Mr. JOHN LANNON'S POSITION.
The Rent Act of 1965 was passed on the 8th November, 1965. Whilst the Bill was going through Parliament, the tenants of Regency Lodge (where Mr. John Lannon lived) were interested in it. Mr. Lannon attended and addressed several meetings of the tenants, The intention was to inform the tenants what their legal position was likely to be under the new law. There was a proposal to form a tenants" association to represent the views of the tenants, but no officers were appointed, and no such association was actually formed. No doubt at that time (whilst the Bill was still before Parliament) Mr. Lannon bad no idea that he was likely to be appointed Chairman of a Rent Assessment Committee. So there was nothing wrong in his addressing meetings of the tenants.
On the 10th May, 1966, the Lord Chancellor appointed Mr. Lannon to be one of the panel of lawyer members. He was appointed for the Registration Areas comprising the areas of the London Boroughs and of the Common Council of the City of London. From that moment onwards, he became eligible, as I understand it, to sit as Chairman of any of the Rent Assessment Committees for those areas of London, on appeal from Rent Officers.
After he was appointed to the panel, Mr. Lannon's firm acted for some of the tenants in Regency Lodge in their negotiations with the Freshwater Group. I presume that Mr. John Lannon himself conducted the negotiations, for he did not state the contrary. These negotiations fell into two categories:
(1) In some cases his firm agreed new rents with the landlords (the Freshwater Group) without resort to the Rent Officer;
(2) In two cases, Nos. 82 and 93 Regency Lodge, the firm made representations to the Rent Officer, putting forward arguments on behalf of the tenants, such as, "The scarcity value is not now relevant", and so forth.
In addition, after he was appointed to the panel, Mr. John Lannon assisted his father in his dealings with the landlords (the Freshwater Group) about the rent of the flat No. 55 Regency Lodge. We do not know the extent of his assistance except in so far as it is to be inferred from (a) a letter of the 31st August, 1966, in which his father proposed a yearly rental of £200, after being "advised that the suggested rental of £850 per annum exclusive was excessive"; (b) a letter of the 13th January, 1967, to the Rent Officer, which the son assisted the father to prepare, and of which the son kept a draft on his files. It took up the father's case strongly against the Freshwater Group. It was not before the Divisional Court , and I think it necessary to set out some of it:-
"To the Rent Officers:
"1. The address of the property is exaggerated" to include the words "Avenue Road, St. John's Wood, N.W.8". None of these is correct, but are presumably used to impress you that the property is situate in a higher class area than is the fact..... "2. The impression may be given you that there is more than one night porter. If so, this is incorrect. There arc no amenities by way of outlook...... the Blue Star Garage is open twenty-four hours a day, with the consequent noise of vehicles accelerating up a steep ramp, motorists hooting for attention and doors and bonnets slamming ......
"9. This (the rent) is excessive. The present rental when fixed included rates of £118 and the basic figure was, therefore, £607 exclusive. This was a market rental of the kind and included a substantial element of scarcity. Had this not been taken into account, it is suggested that the true market value at that time would have been £500 exclusive. Allowing for normal increases during the intervening period, it is submitted that the proper figure is now £660 exclusive."
It is remarkable how that letter came to light. The Freshwater Group made their complaint against Mr. Lannon in an affidavit of the 18th July, 1967, referring to his father's difference with the Group. Mr. John Lannon took four months to reply to this affidavit, and then he swore an affidavit in which he said: "I have not been in any way acting for or advising my father in this connection." But a week later, on the l7th November, 1967, he said this was an error. He said:
"On looking through my papers, I have come across a draft letter from my father to the Rent Officer, the presence of which on my files indicates that I must have assisted my father in the preparation of his representation. I wish to express my sincere regret for the error."
Now that the letter is before us, it is plain that Mr. John Lannon was assisting his father in a dispute with his landlords, the Freshwater Group. He was putting before the Rent Officer (who was the Tribunal of first instance) the case of the tenant against the landlords. That dispute was still pending when six days later Mr. John Lannon sat as Chairman in the dispute about Oakwood Court - to which the same landlords, the Freshwater Group, were parties. In that dispute the tenants were making against the Freshwater Group similar points to those which the father was making against them. Mr. John Lannon was one of the panel of Chairmen hearing appeals from Rent Officers. Yet he was putting representations before Rent Officers who decided oases at first instance.
THE HEARING AND THE DECISION.
I have pointed out that, on Friday, the 13th January, 1967, Mr. John Lannon assisted his father in writing that letter in his dispute with the Freshwater Group. Yet on Thursday, the 19th January, 1967, he sat as Chairman of the Rent Assessment Committee to hear an appeal by that very group. The hearing took three to four days. On the 26th April, 1967, the Committee gave their written decision. Mr. Justice Widgery in the Divisional Court described it as a "startling decision". And so it was. The Committee fixed the rents for Oakwood Court lower than anyone had submitted to them. The figures were well below the contract figures, and even below the tenants' offers. It is illuminating to take the actual figures.
No. 31 OAKWOOD COURT.
This flat has five rooms, two bathrooms and a kitchen. Services include central heating, constant hot water, cleaning and lighting of common parts. On the 25th March, 1959, an insurance company let it to Mr. Kitzinger for seven years at £452 plus £173 for services, making £625 altogether exclusive of rates. (All the figures are exclusive of rates.) On the 17th February, 1966, Mr. Kitzinger applied for registration of a fair rent and proposed a rent of £400 exclusive of services. If the services in 1966 are put at the 1939 figures of £173, the total of the offered rent would be £573. But, if these services are put at the 1966 figure of £225, the total offer would be £625 (the same as the contract rent). So it looks as if Mr. Kitzinger was content with the 1959 figures of £625.
On the 16th June, 1966, the Rent Officer determined the fair rent at £725, exclusive of rates but inclusive of services of £223.2s.0d. That is an increase of £100 on the 1939 figure.
The landlords' expert put the figure at £867 inclusive of services. The tenant's expert put it at £720 inclusive of services. So he virtually agreed with the Rent Officer.
The Rent Assessment Committee determined the figure at £575, inclusive of services. That is £150 below the Rent Officer, and £50 below the 1959 contract figure.
No. 60A OAKWOOD COURT.
The contractual figure agreed in 1965 was £750, inclusive of services. The tenant's offer was £550. The Rent Officer determined a fair rent of £650. The Rent Assessment Committee put it at £515. That is £135 below the Rent Officer, and £35 below the tenant's offer.
No.__6l_OAKWOOD COURT.
The contractual figure agreed in 1965 was £700, inclusive of services. The tenant's offer was £600. The Rent Office put it at £650. The tenant's expert at £625. The Rent Assessment Committee put it at £550. That is £100 below the Rent Officer and £50 below the tenant's offer.
The Committee gave written reasons for their decision. They were bound to do so, on request, under section 12 of the Tribunals and Inquiries Act, 1958, which applies to this Committee. They gave their reasons in writing. But they were sadly wanting in two respects:-
First: They took as comparable a flat at 48 Melbury Court. They said:
"The only flat in the exact same locality is 48 Melbury Court ........ The fair rent of Melbury Court has been determined by the Rent Officer at £600, and the Committee is of opinion that this figure should serve to guide us."
In taking 48 Melbury Court as a comparable, the Committee were doing the right thing, because the experts on each side took it too. But those experts thought that Melbury Court was not so good a flat as the Oakwood Court flats. At any rate, they put the rents of Oakwood Court higher than Melbury Court. Whereas the Committee put them lower - and did not give a word to say why they threw over the experts. It certainly needed explanations for as Mr. Justice Widgery pointed out, it would have been very unwise of them to give predominant importance to Melbury Court.
"They never went into the flat to see what it was like inside. They never enquired what services were provided in the total rent which the Rent Officer had fixed."
Secondly. The Committee are, of course, entitled to use their own knowledge and experience, see The King v. Brighton Rent Tribunal (1950 2 K.B. 410)); Crofton Investment Trust v. Greater London Rent Assessment Committee (1967 2 Q.3.). But that does not mean that they should throw over the evidence altogether. At any rate, they should not throw over the evidence without saying why. That is what troubles me most about their written decision. They threw over the figure of the Rent Officer (himself an expert), the figures of the experts on each side, and the figure of the tenant himself. They fixed a much lower figure - without a word to say why they did it.
If the only failure of the Committee had been to give their reasons, the Court could no doubt have ordered them to do so, see Iveagh v. Minister of Housing (1964 1 Q.B. 410) But no application was made for the purpose. Nor was it made a ground of appeal, as it might have been. So we do not have to go into it further, save that it is an added feature of a "startling" decision.
In parenthesis I may mention the appeal under section 9 of the Tribunals and Inquiries Act, 1958. The landlords said that the decision of the Committee was erroneous in point of law in that; (i) they said that there was no evidence to show that 48 Melbury Court was superior to those flats, but yet the Committee put these rents lower than 48 Melbury Court; (ii) they also said that the Committee calculated the element of services wrongly in various respects. If these were the only points in the case, I do not think the Court should interfere. The Committee have to fix the rent on a broad overall picture. Their results are not to be invalidated by nice points of detail on the wages schedule or management charges. I see no reason to differ from the Divisional Court on these matters.
So I put aside the appeal under section 9 and return to the main point: Was Mr. John Lannon disqualified?
THE LAW.
A man may be disqualified from sitting in a judicial capacity on one of two grounds. First, a "direct pecuniary interest" in the subject-matter. Second, "bias" in favour of one side or against the other.
So far as "pecuniary interest" is concerned, I agree with the Divisional Court that there is no evidence that Mr. John Lannon had any direct pecuniary interest in the suit. He had no interest in any of the flats in Oakwood Court. The only possible interest was his father's interest in having the rent of 55 Regency Lodge reduced. It was put in this way: if the Committee reduced the rents of Oakwood Court, those rents would be used as "comparable" for Regency Lodge, and might influence their being put lower than they otherwise would be. Even if we identify the son's interest with the father's, I think this is too remote, It is neither direct nor certain. It is indirect and uncertain.
So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr. Lannon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood of bias. This is a matter on which the law is not altogether clears but I start with the oft-repeated saying of Lord Hewart, Chief Justice, in Rex v. Sussex Justices (1924 1 KB 256):
"It is not merely of some importance, but is of fundamental importance that justice should not be done, but should manifestly and undoubtedly be seen to be done."
In Regina v. Barnsley Licensing Justices (1960 2 Q.B. 187) Lord Justice Devlin appears to have limited that principle consider-ably, but I would stand by it. It brings home this point: in considering whether there was a real likelihood of bias, the Court does not look at the mind of the Justice himself or at the mind of the Chairman of the Tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand, see The Queen v. Huggins (1895 1 QB 563); Rex v. Sunderland Justices (1901 2 K.B. 373) by Lord Justice Vaughan Williams. Nevertheless there must appear to be a real likelihood of bias. Surmise, conjecture, or suspicion, is not enough, see Regina v. Camborne Justices (1955 1 Q.3. 41) at pages 58 to 51; Regina v. Nailsworth (1953 1 W.L.R. 1046). There must be circumstances from which a reasonable man would think it likely or probable that the Justice, or Chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidences and confidence is destroyed when right-minded people go away thinking: "The Judge was biased".
Applying these principles, I ask myself: Ought Mr. John Lannon to have sat? I think not. If he was himself a tenant in difference with his landlord about the rent of his flat, he clearly ought not to sit on a case against the selfsame landlord, also about the rent of a flat, albeit another flat. In this case he was not a tenant, but the son of a tenant. But that makes no difference. No reasonable man would draw any distinction between him and his father, seeing he was living with him and assisting him with his case.
Test it quite simply; if Mr. John Lannon were to have asked any of his friends:
"I have been asked to preside in a case about the rents charged by the Freshwater Group of Companies at Oakwood Court. But I am already assisting ay father in his case against them, about the rent of his flat in Regency Lodge, where I am living with him. Do you think I can properly sit?"
The answer of any of his good friends would surely have been:
"No, you should not sit. You are already acting, or as good as acting, against them. You should not, at the same time, sit in judgment on them."
No man can be an advocate for or against a party in one proceeding, and at the same time sit as a judge of that party in another proceeding. Everyone would agree that a judge, or a barrister or solicitor (when he sits ad hoc as a member of a tribunal) should not sit on a case to which a near relative or a close friend is a party. So also a barrister or solicitor should not sit on a case to which one of his clients is a party. Nor on a case where he is already acting against one of the parties. Inevitably people would think he would be biased.
I hold, therefore, that Mr. John Lannon ought not to have sat on this Rent Assessment Committee. The decision is voidable on that account and should be avoided.
Although we are differing from the Divisional Courts I would like to say that we have had a good deal more information than that Court had. In particular, we have seen the letter of the 13th January, 1967, and other things not before them when they gave their ruling. Otherwise I would not have thought it right to interfere.
I would allow the appeal and remit the case to another Rent Assessment Committee. Let it be heard again as soon as may be.
LORD JUSTICE DANCKWERTS: There are two points in these appeals:
(1) an appeal from the judgment of the Divisional Court dated the 23rd November, 1967, under section 9 of the Tribunals and Inquiries Act, 1958; and (2) an application for a writ of certiorari quashing the decision of the Committee of the 26th
April, 1967.
On the first point, the principal question, as I understand it, is whether there was a failure by the Committee to give, as required by the 1958 Act, the reasons for their findings and decision, so that there is an error of law which vitiates that decision.
There are certainly criticisms that can be made in respect of lack of clarity and resulting obscurity in regard to the grounds on which the decision of the Committee was based, but I think that there is force in the contention that the Committee is not a formal body, and is not wholly composed of lawyers, so that the necessary skill which a trained Judge would have exercised may not be found in the members of the Committee.
I think that it is not right to require a too high standard of the Committee in this respect. It is possible, in my opinion, to appreciate from the decision of the Committee the matters which affected their conclusions. I do not think, therefore, that it would be right to reverse the Divisional Court on this point.
On the other point I find it extremely difficult to make up my mind. There has been very considerable discussion as to the basis of the jurisdiction relating to bias in regard to a judicial or semi-judicial tribunal, which I find the more difficult to apply in view of the statement that actual bias is not alleged in the present case. The doubts sees to me not to be wholly resolved even now. Must there be a real likelihood that the tribunal was biased, or is it sufficient that a reasonable person would think that the tribunal might be biased? And, how should the principle expressed by Lord Hewart that "justice should not only be done, but should manifestly and undoubtedly be seen to be done" be applied in a matter of this kind?
The matters which are material for this purpose are (1) that Mr. Lannon, the Chairman of the Committee, had acted for and advised tenants of a block of flats of comparable character called Regency Lodge, some five miles distant from Oakwood Court, which were owned by a company called Avenue Properties (St. John's Wood) Ltd., which is a wholly-owned subsidiary of Freshwater Family Holdings Ltd. and consequently a part of the Freshwater Group of companies, which includes the appellant company; (2) that Mr. Lannon had been concerned in discussions about the formation of a "tenants" association", though nothing definite had emerged from these; (3) that Mr. Lannon resided with his father in a flat in Regency Lodge and had corresponded with the landlords in somewhat sharp terms; (4) that his firm had written a letter on this subject on the 13th January, 1967 (which was found in Mr. Lannon's file) just six days before the 19th January, 1967, when the hearing began; (5) that the assessments of the three flats in Oakwood Court, Nos. 31, 60A and 6l, by the Committee were unexpectedly low, being below the figures proposed by the Rent Officer, the landlords' suggested figures, and even the figures suggested by the tenants; and (6) a final feature must be mentioned, that the affidavits by Mr. Lannon appeared to show a lack of frankness.
What would a normal judicial person do in such circumstances as those referred to in (1) to (4) above? I think that such a person would feel that either he ought not to act in the matter as a member of the Committee, or, at least, he should mention these matters at the hearing and enquire whether the parties objected before going on with the hearing. Nothing was said in fact. A person subsequently hearing of these matters might reasonably feel doubts, I think, of the Chairman's impartiality, and the results reached in the Committee's decision, and the form of the affidavits would, I think, increase any suspicion of bias or inability to be impartial by the Chairman, that might have been present in the mind of a party.
Of course, I am not saying that the mere fact that a solicitor has acted for or advised tenants should disqualify him from sitting. But the facts of this case display some lack of appreciation of the rules of conduct by Mr. Lannon, and my conclusion is that it was not wise of Mr. Lannon to act as Chairman of the Committee in the circumstances.
Accordingly, I would allow the appeal.
LORD JUSTICE EDMUND DAVIES: Two broad grounds are relied upon by the appellants in submitting that the decisions of this Committee of the London Rent Assessment Panel given on April 26th; 1967, should not be allowed to stand. To succeed on the first ground it is incumbent upon the appellants to establish (pursuant to section 9 of the Tribunals and Inquiries Act, 1958) that the Committee erred in law in arriving at their decision. It is incontestable (and uncontested) that that decision was indeed "startling", to adopt the adjective employed in the Divisional Court by Mr. Justice Widgery, as he then was. My Lords have already indicated some of the reasons which make that adjective particularly appropriate, and it is noteworthy that Mr. Ashley Bramall (whose familiarity with this branch of the law is, if I may say so, considerable) readily conceded that the decision has features which, in his experience, are unique. Accordingly, Mr. Justice Widgery must be regarded as emphatically right in holding that it was a decision "which required the closest possible investigation".
Such an investigation has now twice been conducted; for four days in the Divisional Court and for as long before this Court. I do not propose to go through all the points relied upon by the appellants in seeking to establish that error in law without which they cannot succeed. That the decision, expansively expressed though it was, leaves untied many loose ends is beyond doubt and, again, has not been doubted. Nevertheless, it has constantly to be remembered that such tribunals are basically informal in character. Its members are not restricted to the evidence adduced before them they are free to draw upon their cumulative knowledge and experience of the matter in hand. (See Crofton Investment Trust Ltd. v. Greater London_Rent Assessment Committee (1967 2 Q.3. 955); and they are not expected to express their decisions with the formality and precision . which is required in judicial proceedings.
That there are several lacunae in the written decision of the Committee is clear. It is equally clear that in some important respects they have omitted to give their reasons, and such omissions have played their part in creating the suspicion of bias which must later be referred to.
For example, having said that -
"The fair rent of Melbury Court has been determined by the Rent Officer at £600, and the Committee is of the opinion that this figure should serve to guide us",
they do not say why, adopting that guide, it should lead them to fix the fair rent of the three Oakwood Court flats as substantially below that of Melbury Court, notwithstanding that the Rent Officer and the expert witnesses for both landlord and tenant and even the tenants themselves put forward higher figures.
It is true that, by analogy to Rex v. City of Westminster Assessment Committee (1941 1 K.B. 53) the Committee were not obliged to accept any of the proferred evidence and were entitled to arrive at rents below those suggested by anybody. But if they had it in mind to do that (as they did) they should have made it clear why they did it, and section 12 of the 1958 Act imposes a duty upon such tribunals as the present to give reasons for its decisions.
They say that they had inspected the Oakwood Court flats (two out of the three were in fact inspected) and the exterior only of Melbury Court and considered that "the general appearance of the block and the entrance halls were of a far higher standard than Oakwood Courts but this goes but a little way towards explaining their departure in a downward direction from the figures proferred on all sides. Nevertheless, despite such unsatisfactory features, I am not prepared to hold that any error in law emerges from or appears on the face of the record, and upon this first ground I should dismiss this appeal.
The second ground upon which the decision is attacked has occasioned me more difficulty. The appellants submit that the Divisional Court
"misdirected itself in holding that on the facts proved or admitted there were no sufficient grounds for the appellant-applicants to believe that the said John Lannon" -that is, the Chairman of the Committee - "could not give them an unbiased hearing".
Not until a late stage in the hearing of this appeal was that matter touched upon. What had chiefly been contested was whether such complaint (be it well founded or not) poses the correct question in law. Mr. Slynn submits that it does not. Resting himself upon such decisions as Regina v. Camborne Justices (1955 1 Q.3. 41) and Regina v. Barnsley Licensing Justices (1960 2 Q.B. 167), he propounds the correct test as beings Was there a real likelihood that the Chairman was biased in his participation in the Committee's decision? He submits that the possibility of bias is insufficient, and so is the suspicion thereof, even though reasonably held by right-thinking people. It cannot be made too clear that the appellants expressly disclaim actual bias in the Chairman. But if Mr. Slynn be right, what becomes of the principle whose fragrance endures despite its enshrinement in the excessively quoted words of Lord Hewart in Rex v. Sussex Justices (1924 1 KB 256) that "justice should not only be done, but should manifestly and undoubtedly be seen to be done? As Professor Smith has written ("Judicial Review of Administrative Action", 1959, page 150) -
"The Courts have often quashed decisions on the strength of the reasonable suspicions of the party aggrieved, without having made any finding that a real likelihood of bias in fact existed".
But, after referring to Regina v. Camborne Justices (ante), the writer continues -
"In so far as the "real likelihood' and 'reasonable suspicion' tests are inconsistent with each other, it is submitted that the former is to be preferred; the reviewing Court should make an objective decision, on the basis of the whole evidence before it, whether there was a real likelihood that the inferior tribunal would be biased. That members of an independent tribunal are likely to have been biased is a serious allegation. The public interest will not be served by relaxing the conditions under which it may be successfully made."
Nor in my judgment will the public interest be served if, in the light of all the circumstances as they finally emerge, it appears to right-thinking people that there are solid grounds for suspecting that a member of the tribunal responsible for the decision nay (however unconsciously) have been biased.
But it oust be conceded that the tide of judicial opinion is to some extent in favour of the professor. Thus, in Healy v. Rauhina and anr. (1958 N.Z.L.R. 945), Mr. Justice Hutchinson, after reviewing the cases, said (at page 951) -
"... The weight of authority now is that the test to be applied is that of real likelihood of bias, and that reasonable suspicion of bias is insufficient".
And in Regina v. Barnsley Justices (1960 2 Q.B. 167), referring to the dissenting judgment of Mr. Justice Saloon in the Divisional Court, Lord Justice Devlin said (at page 187) -
"I am not quite sure what test Mr. Justice Salmon applied. If he applied the test based on the principle that justice must not only be done but manifestly be seen to be done, I think he came to the right conclusion on that test....... But it is not the test. We have not to enquire what impression might be left on the Binds of the present applicants or on the Binds of the public generally. We have to satisfy ourselves that there was a real likelihood of bias - not merely satisfy ourselves that that was the sort of impression that might reasonably get abroad. The term "real likelihood of bias" is not used, in my opinion, to import the principle in R. v. Sussex Justices to which Mr. Justice Salmon referred. It is used to show that it is not necessary that actual bias should be proved. It is unnecessary .... to investigate the state of mind of each individual justice. "Real likelihood" depends on the impression which the Court gets from the circumstances in which the justices were sitting. Do they give rise to a real likelihood that the justices might be biased? The Court sight come to the conclusion that there was such a likelihood, without impugning the affidavit of a justice that he was not in fact biased. Bias is or may be an unconscious thing .... The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sat."
With profound respect to those who have propounded the 'real likelihood" test, I take the view that the requirement that justice must manifestly be done operates with undiminished force in cases where bias is alleged and that any development of the law which appears to emasculate that requirement should be strongly resisted. That the different tests, even when applied to the same facts, may lead to different results is illustrated by Regina v. Barnsley__Justices itself, as Lord Justice Devlin made clear in the passage I have quoted. But I cannot bring myself to hold that a decision may properly be allowed to stand even although there is reasonable suspicion of bias on the part of one or more members of the adjudicating body.
Adopting that approach in relation to the facts of the present case, the circumstances already adverted to by my Lords are such that I regard it as most unfortunate that this particular Chairman sat to try these appeals. The reality of the situation emerges clearly from the record of the Committee itself, for when it sat on January 19th, 196?, its Clerk began his notes of the hearing by transcribing as the landlords of the Oakwood Court flats net "Metropolican Properties Company (F.G.C.) Ltd.", but "The Freshwater Group of Companies . To that same group belonged the Swiss Cottage flat tenanted by Mr. Lannon Senior, on whose behalf his son had written to the Rent Officer only six days before the hearing in terms critical of the landlords. It is indeed difficult to see how the Chairman could have failed to be aware of the ambiguous position in which he was placing himself by so soon thereafter proceeding to adjudicate on the Oakwood Court applications. Be that as it may, the result of his having sat is highly unfortunate. It is conceivable that, although "startling", the decisions of the Committee were nevertheless correct - that remains to be seen. But it is not manifest that they were just, and they therefore ought not to be allowed to stand. I concur with my Lords in holding that they should be quashed.
THE MASTER OF THE ROLLS: The appeal is allowed; the decision of the Divisional Court quashed; it will be remitted to the Committee to hear.
Mr RICH: I am obliged, my Lord. As to the costs, I would, if I may, put it in these terms — an Order in the following terms. I understand it will not be a form that is opposed by either of my friends. That is, that the Committee should pay the costs of the appeal in the certiorari case here in this Court, but that the Order as to costs by the Divisional Court against the successful appellants in favour of the Committee be disturbed to this extent, that there should be no Order for costs in the Divisional Court in favour of the Committee.
THE MASTER OF THE ROLLS: In other words, on the certiorari basis, no Order for the costs of the Divisional Court proceedings, but the Committee pay the costs in this Court?
Mr RICH, If your Lordship pleases; and as against the tenants — and there are only two tenants who have appeared: Mr. Kitzinger, who appeared in person, and Mr. Zenker, who appeared by my friend Mr. Bramall — I have agreed only, of course, in respect of the tenant who appeared by Counsel, Mr. Zenker; but the Order that I would propose is that the Order made by the Divisional Court in favour of the tenants on the whole matter should be left undisturbed, but that there should be no Order for costs in their favour in this Court. That, in my respectful submission, will be perhaps a rough way of doing it.
THE MASTER OF THE ROLLS: No Order in this Court? What is the position as to the costs in the Divisional Court?
Mr RICH: They will still have their costs in the Divisional Court.
THE MASTER OF THE ROLLS: The appellants will have their costs in the Divisional Court?
Mr RICH: That will include the whole of the costs including the certiorari costs in the Divisional Court; but there will be no attempt to split the costs as against the tenants in the Divisional Court; so that no Order for costs in favour of the tenants here.
THE MASTER OF THE ROLLS: The tenants to have all their costs in the Divisional Court in both proceedings, but no Order as to costs here?
Mr RICH: If your Lordship pleases.
THE MASTER OF THE ROLLS: I do not know about Mr. Kitzinger. I do not think he is here this morning. I do not suppose he has many costs, but if he has in the Divisional Court, I suppose that would stand for him.
Mr RICH: Yes. My recollection is that in the Divisional Court Mr. Kitzinger indicated that he had no costs and therefore was
not seeking costs. So that there will be no costs either way.
Mr SLYNN: My Lord, I would accept that Order if your Lordship thinks it is proper to made it.
THE MASTER OF THE ROLLS: What do you say, Mr. Bramall?
Mr BRAMALL: My Lord, I would accept it.
THE MASTER OF THE ROLLS; Those being the proposed Orders, I think we should make the Order in those terms. Make a note and give it to the Associate, if you would not mind.
Mr SLYNN; Lay I mention one other matter? Your Lordship will appreciate that in the Divisional Court the Committee were regarded as being entirely satisfactory. As your Lordships have said, a very important question of principle is involved. It is not only important to this Committee, but generally. Lord Justice Danckwerts has pointed out the difficulties. It has important applications generally in regard to the adminis tration of this Act, and I am instructed, so that the matter may be considered in some detail, to ask for leave to appeal to the House of Lords.
THE MASTER OF THE ROLLS: Mr. Rich, do you wish to say anything about it?
Mr RICH: Yes, my Lord, but only to this extent; if I may ride two horses: as your Lordships have indicated, the matter that caused your Lordships to differ from the Divisional Court was that your Lordships had more material before you. I think it is therefore perhaps less easy for my friend to urge upon your Lordships that in differing from the Divisional Court your Lordships have differed on a matter of principle from the Divisional Court. Indeed in my submission in principle the Divisional Court was accepting the view as to the law which your Lordships have also propounded. But if your Lordships were minded to accede to my friend's application, I would ask two things. Firstly, that he should be put upon some terms as to the costs. My Lords, I accept that from the Committee's point of view this may well be a matter of some substantial importance and it is unfortunate that this particular appellant has got caught up in these particular circumstances; but if it is to be tested and considered further, I submit that the appellants should be protected as to their costs. Further, if the matter is to be taken to the House of Lords, I would respectfully submit that it must be a matter of convenience to that House that the whole matter should be before it at that time, and if your Lordships were minded to accede to this application, I would then myself - and only then - apply for leave to take the section 9 point to the House at the same time, so that the whole of the issues can be before the House, as they have been before your Lordships and as they were not before the Divisional Court; because, of course, your Lordships will recollect that the Divisional Court dealt with the bias point as a preliminary point before the section 9 case, and that is one of the matters which made it less satisfactory for them in considering the bias point.
(The Court conferred.)
THE MASTER 0F THE ROLLS: We do not give leave. We think the sooner these cases are disposed of the better. The Associate is asking about the actual form of the Order. So far as certiorari is concerned, of course, the Order is quashed. In the other, the section 9 appeal, we do not make any Order in that. It is rather a difficult matter if we quash the Order.
Mr RICH: It will appear how your Lordships have dealt with it in your Lordship's judgment. Perhaps your Lordship can say on the section 9 appeal no Order as to the appeal save as to costs.
THE MASTER OF THE ROLLS: No Order save as to costs. I think that will do it.
