Porter v Magill
Porter v Magill [2002] 2 AC 357
Parties and outcome
- Appellant
- John Magill, the district auditor
- Respondents
- Dame Shirley Porter and David Weeks
- Outcome
- Magill won: the appeal was allowed and the Divisional Court’s order imposing liability on Porter and Weeks was restored.
Citations in this work
Padfield
Support for this principle may be found in R v Board of Education [1910] 2 KB 165 at 181 where Farwell LJ said: “If this means that the Board were hampered by political considerations, I can only say that such considerations are pre-eminently extraneous, and that no political consequence can justify the Board in allowing their judgment and discretion to be influenced thereby.” This passage was accepted by Lord Upjohn in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1058 , 1061.
Gough
115. In my consideration of the disqualification application, I have sought to apply the test formulated in R v Gough [1993] AC 646 , namely ‘whether, in all the circumstances of the case, there appeared to be a real danger of bias …’ . In my view, a person having ascertained the relevant circumstances would not consider that I will regard unfairly any person's case with disfavour. It has been suggested that I will find it difficult to depart from my provisional findings and views because of the publicity given to these. I feel no such inhibition. Nor, in my view, is there any ground on which I should reasonably be thought to be so inhibited. I have always made it plain that before reaching any conclusion I will consider any representations made to me. In my view, that is a process which necessarily conveys to any reasonable person the point that my conclusions may not coincide with my provisional findings and views. My view is that no real danger of bias exists and nor is there any other basis on which I should disqualify myself.”
Gough
99.. The test for apparent bias which the auditor sought to apply to himself, and was applied in its turn by the Divisional Court, was that which was described in R v Gough [1993] AC 646 by Lord Goff of Chieveley where he said at p 670: “I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily have been available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him …”
Cited by
- Miller
62. The question is whether a fair-minded and impartial observer would conclude that the ombudsman had pre- determined the outcome of the complaint both at the outset of the investigation and at the Draft Report stage. Jackson LJ (with whom the rest of the court agreed) in Lanes Group v Galliford Try Infrastructure [2011] EWCA 1617 held at [45] that: "Pre-determination arises when a judge or other decision maker reaches a final conclusion before he or she is in possession of all the relevant evidence and arguments." Jackson LJ cited the speech of Lord Hope in Porter v Magill [2002] 2 AC 357 to identify the test: the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
- Kirkham & O’Loughlin (2020)