Unsubstantiated bias allegation should not be made

Thatcher v Douglas and another; Court of Appeal (Lord Justice Nourse, Lord Justice Hutchison and Lord Justice Thorpe); 19 December 1995

A barrister's duty to put his client's case could not extend to advancing his client's unsubstantiated belief that the judge was corrupt or biased. The barrister's duty was either to decline to comply with his client's instructions or to withdraw from the case.

The Court of Appeal dismissed an appeal by the defendants, James K. Douglas and his wife, Diane Douglas, from Mr Recorder Donne QC's decision that the plaintiff, R.G. Thatcher, had a right to use a slipway which was enforceable against the defendants.

The plaintiff claimed a right to use a concrete slipway leading to tidal mudflats in the area of the common boundary between his and the defendants' houses. In January 1994 the recorder decided that the plaintiff and his successors in title had an easement over the slipway which, although not registered, was an overriding interest within section 70 of the Land Registration Act 1925.

The defendants appealed. Their original notice of appeal asserted that the recorder's decision was against the weight of the evidence and his decision on section 70 was wrong.

When the appeal was listed for hearing in October 1995, the defendants wished to advance allegations that the recorder had been guilty of corruption and bias. The appeal was adjourned to allow the recorder to comment on the allegations. A 16-page document containing allegations was sent to the recorder, who dealt with the specific points which he felt merited comment.

Graham Lyons (Peter M. Ross, Havant) for the defendants; T.A.S. Pearson (Michael Daltons, Hayling Island) for the plaintiff.

Lord Justice Nicholls, giving the court's judgment, said that the document sent to the recorder contained matters which illustrated both the complete inappropriateness of asserting that such matters could even begin to be indicative of corruption or bias and the irrelevance and impertinence of asking such questions.

It was most regrettable that the appeal was at a late stage converted into an attack on the integrity of the recorder without the smallest foundation or the slightest evidence. Earlier letters written by the first defendant to the Lord Chancellor, the recorder, his own solicitors and the court revealed paranoid thinking and contained threats to do grievous bodily harm to the recorder.

In the summer the first defendant apparently accepted proper advice that the appeal should not be contaminated by allegations of corruption and bias. At a late stage he changed his instructions and insisted they should be made. Mr Lyons acted on those instructions.

While the court appreciated the difficult situation in which Mr Lyons found himself, he had made a grave error of judgment in complying with his client's instructions. The duty of counsel to put his client's case could not extend to advancing the client's belief, unsubstantiated by any evidence, that the judge was corrupt or biased. His duty in such circumstances was either to decline to comply with the instructions or to withdraw from the case.

Moreover the defendants had been granted a legal aid certificate to pursue the appeal. Specific authority ought to have been obtained from the legal aid board for the further conduct of the appeal on added grounds of corruption and bias. Thus the board would have had the opportunity to refuse to allow public money to be wasted on such an unwarranted exercise.

Having considered the other arguments the recorder's finding of an easement intended to bind successors in title was not against the weight of the evidence. The question whether the easement was an overriding interest within section 70 depended on whether Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204 was distinguishable or wrong. No ground had been shown on which the decision was distinguishable.

It was argued that the decision was wrong because rights under the Land Registration Rules 1925 applied only to legal and not to equitable interests. That argument involved a restriction which, in property legislation, could not be implied when it could so easily have been expressed. The recorder's decision was correct on this point also.