Neutral Citation Number: [2016] EWHC 2169 (Ch)
Case No: A00SC044
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY

The Court House
Oxford Row
Leeds LS1 3BG

Date: 26/08/2016

Before:

His Honour Judge Behrens 
sitting as a Judge of the High Court in Leeds
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Between:

	(1) ANTHONY RICHARD HOWE
(2) DEIRDRE HOWE 	
Claimants	
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	(1) CHERYL GOSSOP
(2) DEAN GOSSOP	
Defendants	

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Neil Cameron (instructed by Williamsons) for the Claimants
Christopher Moss (instructed by Stephensons) for the Defendants

Hearing date: 23 August 2016
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Judgment Approved
Judge Behrens: 
1. Introduction
1.	This is an application by the Claimants for permission to appeal against a ruling by Mr Recorder Duncan Smith (“the Recorder”) made on 20 May 2016 in a neighbour dispute between the parties. In the ruling the Recorder refused to recuse himself from dealing with the trial further and refused to order that the trial should recommence before a different judge.
2.	By the 20 May 2016 there had been a number of hearings before the Recorder. These comprised a 3 day trial on 15, 16 and 17 June 2015 following which judgment was reserved, and 3 further hearings on 20 July 2015, 16 November 2015 and 13 April 2016. It will be necessary to set out the chronology in some detail but for present purposes it is to be noted that the Recorder sent out two draft judgments to the parties – one in early July 2015 and the other on 14 October 2015. Neither of these judgments were formally handed down. Furthermore, on 16 November 2015 he granted the Defendants permission to amend the relief claimed in the Counterclaim and also made provision for further evidence in relation to that issue. Further witness statements have been filed in pursuance of his order.
3.	As might be expected the draft judgments contained the Recorder’s assessment of the evidence he had heard in the 3 day trial. In that assessment he formed a very adverse impression of Mr Howe. He described him as tendentious in character with an overbearing personality. He concluded that Mr Howe had attempted to bribe his son (who gave evidence on behalf of the Defendants) to give evidence in accordance with his (Mr Howe’s) preferred version of events. He described this as an attempt to pervert the course of justice. Unless corroborated the Recorder did not accept Mr Howe’s version of events as reliable. On the other hand he found the evidence of Mr Howe’s son and that of the Defendants to be reliable.
4.	The application for the Recorder to recuse himself was principally based on the fact that he had formed a firm view on the reliability of the witnesses at a time when, in the events that have happened, there is further contentious evidence to be called. In those circumstances it is submitted that the Recorder cannot be impartial and there is at least the appearance of bias.
5.	The Recorder rejected that argument. He concluded that there was no actual bias and no imputed bias against the Claimants. The Claimants seek permission to appeal against that ruling. Their principal argument was the argument raised before the Recorder. However Mr Cameron, in his helpful submissions on behalf of the Claimants, made a number of points based on the forms filled in by the Recorder as a result of refusing permission to appeal. Mr Moss sought to uphold the order of the Recorder. He submitted that this was a blatant attempt by the Claimants to obtain a second bite at the cherry where they had in effect lost and been disbelieved at the first attempt. He pointed out that the Defendants had already incurred costs of £100,000 in this dispute and they should not be compelled to incur the risks and expense of a further lengthy trial.
6.	On 20 June 2016 I refused permission to appeal on paper. However, I indicated that if an application was made for an oral hearing the appeal itself would follow the application in the event that permission was granted. At the hearing I directed that both the application and the appeal would be dealt with at the same time.
7.	Having heard the arguments, I have come to the conclusion that the appeal is arguable. I accordingly grant permission to appeal. The remainder of this judgment is concerned with the appeal itself. 
2. The issues in the dispute.
8.	On 16 September 2011 the Claimants and a Company under their control transferred some land at Barton-Upon- Humber to the First Defendant (“Mrs Gossop”). The land is described as Barn 1, the Hay Barn and some surrounding land. It is shown coloured purple and yellow on Plan 1 attached to the Particulars of Claim. The Claimants retained land surrounding that which was sold to the Defendants including a house and garden known as White House Farm which they occupy as their residence.
9.	The proceedings were issued in the Scunthorpe County Court on 21 March 2014. In the Particulars of Claim dated 13 March 2014 settled by Mr Cameron the Claimants made 8 claims. The Defence and Counterclaim settled by Mr Moss was dated 21 April 2014. The Reply and Defence to Counterclaim settled by Mandy Anfield was dated 2 May 2014. The pleaded issues may be summarised:
Claim 1
10.	The Transfer contained a positive obligation on Mrs Gossop to relay the surface of the New Roadway to the satisfaction of the Claimants within 15 months. It was alleged that Mrs Gossop was in breach of this obligation.
11.	In the Defence it was alleged that the Defendants had complied with the covenant and that the roadway had been relayed to a very high standard. 
12.	It was further alleged that under the terms of the covenant the Claimants were obliged to pay the Defendants £7,000 on completion of the work. A cheque for £7,000 was sent and stopped. No payment has been made.
13.	In the Reply and Defence to Counterclaim issue was joined as to whether Mrs Gossop had complied with the covenant.
Claim 2
14.	The Transfer contained a positive covenant by Mrs Gossop to construct boundary structures along all the boundaries and to erect gates at the north and south termini of the Roadway. It was alleged that Mrs Gossop had not erected boundary structures on any of the boundaries and had not constructed a gate at the northern terminus.
15.	In the Defence the breach was denied. The substance of the Defence was that gates were placed in the positions orally requested by Mr Howe rather than the positions specified in the Transfer. Thus there was an alternative suggestion that the Claimants are now estopped from demanding that they be placed in the positions specified in the Transfers.
16.	Issue is joined in the Reply.
Claim 3
17.	The Transfer contained a restrictive covenant restricting the use of the land to that of a private dwellinghouse save that it permitted the use of the Hay Barn for any use connected with haulage business operated by Mrs Gossop. It was alleged that Mrs Gossop was in breach in that she had permitted the land surrounding the Hay Barn to be used for purposes connected with Mr Gossop’s haulage business. The surrounding land was shown hatched yellow on a plan and included land not included in the Transfer which thus belonged to the Claimants.
18.	In the Defence it was denied that the use was in breach of covenant. It was denied that the use was commercial. Furthermore, any alleged encroachment was with the express consent of Mr Howe.
19.	No additional allegations are made in the Reply.
Claim 4
20.	The Transfer contained a covenant by Mrs Gossop not to obstruct the New Roadway. It was alleged that Mrs Gossop had obstructed the new Roadway by erecting and storing materials on it and parking vehicles on it. It was further alleged that these acts were an excessive user of the Defendants’ right of way over the New Roadway.
21.	In the Defence it was denied that any materials were stored on the New Roadway and that no vehicles were ever parked there. It was, however, admitted that on one occasion a digger lent by Mr Howe broke down on the New roadway when it was being returned to him.
22.	No additional allegations are made in the Reply.
Claim 5
23.	The Transfer contained a covenant by Mrs Gossop not to obstruct the Roadway. It was alleged that Mrs Gossop locked the gate at the southern end of the Roadway between 29 November 2013 and 1 December 2013. During that 3 day period the Defendants stored materials on the New Roadway and parked a large goods vehicle on it in such a way as to deny the Claimants access to White Hart Farm. 
24.	In the Defence the allegations were described as trivia. It was pointed out that keys to the gates were provided to Mr Howe. In so far as the claims relate to the New Roadway the defence to claim 4 is repeated. The suggestion that the Claimants were entitled to “aggravated damages” was nonsense.
25.	In the Reply the Claimants denied that they were provided with keys to the gates.
Claims 6 and 7
26.	Both of these are claims in trespass. In summary it was alleged that there was an area (part of the green land) which the Defendants had incorporated into the lawn of the Barn and an area (part of the yellow land) which had been incorporated into the Hay Barn area. Neither of these areas were included in the Transfer.
27.	The trespasses are denied. Paragraph 25 of the Defence reads:
“the Defendants aver that any alleged trespass by them onto the Claimant’s land has been with the express consent of the Claimants. Particularly the Claimants at one stage wanted to offer land (“the extra land”) instead of the £7,000 payment. The Defendants carried out extensive work and returfing of the extra land with the Claimants full consent such that the Claimants are now estopped from making allegations of trespass in respect of the extra land.”
28.	In the Reply this paragraph is denied.
Claim 8
29.	This was a further claim in trespass. It was alleged that the Defendants have driven vehicles up the existing track from their land for the purpose of turning vehicles around. They have no right to use the existing track.
30.	The allegations were denied in the Defence. It was pointed out that they lack particularity.
The Counterclaim
31.	In paragraphs 27 and 28 of the Defence the Defendants set out threats made by the Claimants in relation to work that the Claimants propose to carry out which the Defendants allege would constitute acts of trespass and/or interfere with the Defendants’ right of ways over the “Old Roadway”.
32.	In the prayer for relief the Defendants claimed the £7,000 owed under the Transfer, injunctions to prevent the threatened works and/or damages.
33.	In paragraph 15 of the Reply the Claimants seek to answer the allegations in paragraphs 27 and 28 of the Defence. As these issues are not central I shall not summarise them.
3. Chronology of Events
The trial
34.	As already noted the trial took place between 15 and 17 June 2015. The Recorder heard evidence from 5 witnesses comprising the Claimants, the Defendants and Sean Howe (the Claimants’ son) who gave evidence for the Defendants. He also had a view. The evidence was completed in those 3 days but there was no time for submissions. Accordingly, the Recorder invited written submissions from Counsel which were provided on 26 June 2015 and 3 July 2015.
The first Draft Judgment
35.	Sometime between 3 and 20 July 2015 the Recorder circulated his first draft judgment. In the course of that judgment he expressed his views on the credibility of the witnesses which I have summarised in the Introduction. Between pages 8 and 11 the Recorder expressed his conclusion on claims 1 to 5. In summary:
Claim 1
36.	The Recorder was satisfied that Mr Howe had relaxed the terms of the covenant in a number of ways and that Mr Howe was satisfied with the resurfacing work. Hence the Defendants succeeded in respect of claim 1.
Claim 2
37.	The Recorder accepted Mrs Gossop’s evidence in relation to the boundary structures round the Hay Barn. He was satisfied that all other boundary structures had been erected. He held that there was no breach of covenant. He held that Mr Howe did relax the requirement for a gate at the northern terminus. Hence the Defendants succeeded on claim 2.
Claim 3
38.	The Recorder rejected the Claimants’ construction of the covenant and held that as a matter of construction the land surrounding the Hay Barn was within the exception in the restrictive covenant. He made no finding as to whether the use was commercial. It follows that the Defendants succeeded on claim 3.
Claim 4
39.	The Recorder rejected the claim that there was any obstruction of the New Roadway but further held that “any suggested obstruction” was erected at the request of Mr Howe. It follows that the Defendants succeeded on claim 4.
Claim 5
40.	The Recorder held that any obstruction of the Roadway by “the Bobcat” was accidental, of short duration and de minimis. He accepted the evidence that Mr Howe had been given a key to the gate and thus, by inference held that there was no interference. It follows that the Defendants succeeded on claim 5.
Claims 6 and 7.
41.	In his judgment the Recorder pointed out that in the Defence (paragraph 25) the Defendants raised an estoppel as the defence to the trespass claim but had not counterclaimed for any relief in relation to that estoppel.
42.	He accepted Sean Howe’s evidence that Mr Howe freely gave permission for the use of these 2 parcels of land. However, he found it difficult to reconcile the Defendants’ claim to an estoppel as a defence to the action for trespass in addition to the claim for the £7,000 in relation to the moneys due under the Transfer.
43.	He accordingly decided to invite further submissions from Counsel.
The hearing on 20 July 2015
44.	This hearing was convened for the purpose of handing down the judgment. However, in the light of the Recorder’s request the draft judgment was not handed down. The parties provided detailed submissions on the estoppel claim. In the course of his submissions, possibly at the suggestion of the Recorder, Mr Moss made an application to amend the Defence and Counterclaim. The only amendment sought related to the relief claimed by the Defendants. The claim for £7,000 was deleted. Instead the Defendants claimed a declaration that a proprietary estoppel had arisen in respect of the two pieces of land and/or that an irrevocable licence had arisen in favour of the Defendants’ use and occupation of the two pieces of land.
45.	No order was made at that hearing. In particular no part of the judgment was handed down. No ruling was given on the application to amend. The hearing was adjourned to enable the Recorder to consider the position in the light of the new submissions.
The second Draft Judgment
46.	On 14 October 2015 the Recorder circulated a second draft judgment. The first 17 pages of that judgment are in all material respects identical to the first draft judgment. Thus the Recorder repeated his views of the assessment of the witnesses and made identical findings in respect of Claims 1 to 5. The remainder of the judgment dealt with claims 6, 7 and 8.
Claims 6 and 7
47.	The Recorder discussed these claims at considerable length between pages 18 and 25 of the judgment. In the light of his subsequent decisions it is not appropriate for me to set out his reasoning.
48.	The Recorder in effect held that the elements of proprietary estoppel were made out in respect of the two pieces of land. He considered it appropriate to grant the application to amend. He recognised it was made at a late stage. He felt it appropriate “in the interests of justice”.
49.	He was accordingly prepared to make a declaration that there was an irrevocable licence in favour of the Defendants’ use of the two pieces of land.
Claim 8
50.	The Recorder dealt with claim 8 quite briefly on page 25 of the judgment. He held that it failed for want of evidence. It follows that the Defendants succeeded on Claim 8.
51.	The Recorder concluded his judgment by inviting further submissions on whether the Claimants would offer binding undertakings on the other 2 matters raised in the Counterclaim and whether this was a case for an award of costs against the Claimants on an indemnity basis.
The hearing on 16 November 2015
52.	On 16 November 2015 there was a hearing for the purpose of handing down the judgment and dealing with the matters identified at the end of the draft judgment. However, at the commencement of the hearing Mr Cameron presented the Court with an application to adduce further evidence in relation to the estoppel issue, a draft witness statement from Mr Howe, and draft grounds of appeal against the judgment. 
53.	There was no indication at the time that the further hearing should be before a different judge or that there should in effect be a complete retrial.
54.	After hearing argument the Recorder did not hand down the draft judgment. He did however grant the Defendants permission to amend the Defence and Counterclaim and permitted both parties to adduce further evidence. He directed that the trial be resumed on the first available date after 14 December 2015 with a time estimate of 3 days.
55.	Regrettably the order has not been drawn up. Fortunately, however, there was no dispute between Counsel as to the orders that were made. In any event there has been no application for permission to appeal the order. 
56.	Following the hearing both sides have filed further witness statements and some further disclosure has been given.
The application for recusal
57.	The application for the Recorder to recuse himself was made on 11 February 2016. It was supported by a witness statement from Mandy Anfield. In paragraphs 1 to 8 she summarised the history of the proceedings. In paragraph 9 of her witness statement she pointed out that there were now further disputed issues of fact and that Mr Howe was concerned that the Recorder may, in effect have put himself in a position of having prejudged those further issues and/or that those issues in the draft judgment might not be appropriately reconsidered in the light of any findings of fact in respect of the new issues. She submitted that a reasonable third party observer might form the view that the remainder of the trial might not be carried out by a tribunal which – and is demonstrably – unbiased in its approach to the new evidence.
58.	In paragraph 12 she recognised that the effect of the recusal would mean that the trial would have to be restarted which would lead to inconvenience and additional expense to the parties.
59.	On 13 April 2016 the application was listed before the Recorder. After hearing argument he again reserved his judgment. On this occasion (perhaps unsurprisingly) he did not circulate a draft judgment. The matter was relisted on 20 May 2016. The Recorder refused to recuse himself for reasons set out in his written judgment. 
60.	The Recorder commenced his judgment by setting out the law. In doing so he referred to two recent authorities – Otkritie v Urumov [2014] EWCA Civ 1315 and Amjad v Steadman-Byrne [2007] EWCA 348. He then set out the chronology before coming to his decision. 
61.	In his decision he started by saying that he felt no actual bias against the Claimants. He then went on to consider whether a fair minded and independent would conclude that there is a real possibility that he was biased. He concluded that there was no such possibility.
62.	Following this decision the Recorder refused the Claimants permission to appeal and completed the Form N460. In his reasons for refusing permission he included:
It has never been in my contemplation that the Claimants would seek to relitigate any issue about which I have already made findings in my draft judgment. The amendment to the Counterclaim was limited to the nature of the relief sought.
I do not see how the Claimant can be entitled to re-open matters already dealt with in my draft judgment. Thus any new evidence will not cause me to alter what appears in my draft judgment.
4. The Law.
63.	The most recent case on the law of bias is the decision of the Court of Appeal in Harb v Aziz [2016] EWCA 556. As Lord Dyson said at paragraph 54 there is no dispute as to the test for the appearance of bias:
In Porter v Magill [2002] 2 AC 357, Lord Hope said at para 103:
“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.”
64.	It is to be noted that that is precisely the test applied by the Recorder in his judgment.
65.	At paragraphs 69 – 72 Lord Dyson elaborated on this:
69.	As we have said, the legal test is not in doubt: see para 54 above.  We would, however, emphasise two important points.  First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant.  The “real possibility” test is an objective test.  It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias: see Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416 at para 2 per Lord Hope.  As Lord Hope also said in Porter v Magill at para 103, the “real possibility of bias” test “is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias” (emphasis added). We mention this because it demonstrates that the approach urged on the court by Lord Grabiner is incorrect.  The court does not ask whether a litigant who is being represented by a member of Blackstone Chambers and knows of the Article would be content to have his case heard by Peter Smith J.   We have little doubt that most, if not all, litigants represented by a member of Blackstone Chambers, knowing of the Article, would prefer to have their case heard by another judge.   We are prepared to accept that some, indeed many, might have very strong feelings on the subject.  But the litigant is not the fair-minded observer.  He lacks the objectivity which is the hallmark of the fair-minded observer.  He is far from dispassionate.  Litigation is a stressful and expensive business.  Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded.
70.	The facts of Helow illustrate the point well.  The petitioner was a Palestinian refugee living in Lebanon.  She claimed asylum in the UK on the ground that she feared that, if she were returned to Lebanon, she would be attacked by Lebanese and Israeli agents on account of her Palestinian ethnicity and political opinions.  Her claim was refused by the Secretary of State, whose decision was upheld by an adjudicator sitting in Glasgow.  Her petition to the Court of Session was dismissed by the Lord Ordinary, who was a member of the International Association of Jewish Lawyers and Jurists, whose magazine had carried a number of extreme pro-Israeli articles.  The petitioner sought to set aside the Lord Ordinary’s decision on the ground that a fair-minded and informed observer would have concluded that there was a real possibility that she was biased by reason of her membership of an association which was actively antipathetic to the interests with which the petitioner was identified.  The House of Lords dismissed the appeal.  In doing so, it conducted a detailed examination of the facts to ascertain the nature and significance of the Lord Ordinary’s membership of the association and its published aims and objectives.  The House also said that it could be assumed (and took into account) that the judge was able to discount material that she had read and reach an impartial decision according to the law.  We expect that the petitioner would have been very unhappy that her petition had been determined by the Lord Ordinary.  No doubt she would have preferred a judge who had no involvement with a body like the association.  From her subjective point of view, it might have appeared that there was a real possibility that the judge had been biased.  But the test is an objective one and the focus is on the fair-minded informed observer.  The approach advocated by Lord Grabiner fails to draw that critical distinction.  
71.	It also fails to take account of the important point that, even if a judge is irritated by or shows hostility towards an advocate, it does not follow that there is a real possibility that it will affect his approach to the parties and jeopardise the fairness of the proceedings.  From time to time, the patience of judges can be sorely tested by the behaviour of advocates.  Sometimes, a judge will overreact and unwisely make an intemperate comment.  But judges are expected to be true to their judicial oaths and not allow their feelings about an advocate to affect their determination of the case they are hearing.  The informed and fair-minded observer is to be assumed to know this.   
72.	Secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances and it is for the court to make an assessment of these: see Competition Commission v BAA Ltd and Ryanair Ltd [2010] EWCA Civ 1097 per Maurice Kay LJ at paras 11 to 13 and the authorities cited there.  It is common ground before us that the relevant circumstances in this case include all the facts set out at paras 57 to 59 above, although some of these were not in the public domain.  It was held in Virdi v Law Society [2010] EWCA Civ 100 that the hypothetical fair-minded observer is to be treated as if in possession of all the relevant facts and not only those that are publicly available.  Stanley Burnton LJ gave a number of reasons for this conclusion at paras 43 to 48 of his judgment.  This reasoning is binding on this court.  In any event, we are satisfied that it is correct.
66.	It is thus clear that the views of Mr Howe are by no means conclusive. He is not to be treated as the independent and fair minded observer.
67.	There is also considerable authority on the question on the question whether a judge hearing an application (or a trial) which relies on his own previous findings should recuse himself.  It is set out in detail in Otkritie. Amongst the passages relevant to this dispute are:
13.	The general rule is that he should not recuse himself, unless he either considers that he genuinely cannot give one or other party a fair hearing or that a fair minded and informed observer would conclude that there was a real possibility that he would not do so.  Although it is obviously convenient in a case of any complexity that a single judge should deal with all relevant matters, actual bias or a real possibility of bias must conclude the matter in favour of the applicant; nevertheless there must be substantial evidence of actual or imputed bias before the general rule can be overcome.  All the cases, moreover, emphasise, that the issue of recusal is extremely fact-sensitive.
22.	There is thus a consistent body of authority to the effect that bias is not to be imputed to a judge by reason of his previous rulings or decisions in the same case (in which a party has participated and been heard) unless it can be shown he is likely to reach his decision “by reference to extraneous matters or predilections or preferences”.  There can be no suggestion that Eder J would proceed in the present case by reference to such matters.
68.	Both of these passages were cited by the Recorder in his judgment.
69.	Mr Cameron placed considerable reliance on the decision in Amjad and pointed out that it was not referred to in Otkritie. 
70.	Amjad was a personal injury action by 3 claimants arising out of a road traffic accident. Liability was admitted in respect of 2 claimants but denied in respect of the third on the ground that he was not in the car. The District Judge heard the evidence of the Claimants in the morning. He then adjourned and invited Counsel into his room. He then said:
(1)	Having heard the claimants give evidence, he believed them.
(2)	He had considered the manner in which they gave their evidence and in particular the quickness with which they responded to questions.
(3)	He had warned each one of them of the consequences of his deciding that they were pursuing a fraudulent claim and had seen their reply. He did not consider the men to be dishonest.
(4)	He accepted that he had not yet heard the defendant give evidence, but in view of his decision that the claimants were honest he could not see how the defendant could win.
(5)	He wanted to give both counsel an indication of his thoughts.
(6)	It was ‘flavour of the month’ for insurers to prosecute claimants with ‘Asian sounding names’.
(7)	He would, if necessary, say something about that in his judgment..
(8)	Insurance companies are trying to send out a message about fraudulent claims to the Asian community, if there was such a thing.
(9)	There were some discrepancies in the evidence given by the claimants but not such as to make him think that this was a fraudulent claim.
(10)	He noted that the defendant worked for the police.
(11)	Someone with a police background ‘always thinks that they are right’ [or ‘never thinks that they are wrong’] ‘and find it difficult to accept that they might be mistaken’.
(12)	The defendant may or may not be mistaken, but he believes that he saw two people in the car and may have concluded that the claimants are ‘at it’.
(13)	He would continue to hear the case, but the defendants’ counsel may wish to take instructions over the lunch break.
71.	The judgment of the Court was given by Sedley LJ. In paragraph 10 of his judgment he set out the test for bias and explained that 
Bias in the present context has to mean the premature formation of a concluded view adverse to one party. We put it in this way because it is well recognised not only that a judge may and commonly will begin forming views about the evidence as it goes along, but that he or she may legitimately give assistance to the parties by telling them what is presently in the judge’s mind.
72.	In paragraph 12 Sedley LJ posed the question:
The question remains whether the thoughts he communicated were nevertheless such as to suggest to a reasonable observer that his mind was all but closed against the defendant.
73.	In paragraph 14 he endorsed what Lady Smith said in Project v Hutt (2006) UKEAT S/0065/05/RN, §22: 
“There are, of course, occasions when a judge or tribunal can quite properly explore difficulties that have become apparent from the evidence in a case, prior to the point at which all evidence has been led and submissions made, whether with a view to encouraging parties to consider settlement or narrowing the issues between them, or otherwise.  There must, though, be few occasions when that can properly be done at a point prior to the leading of any evidence in the case since, at that stage, there is, by definition, no evidence before the court or tribunal on which it can comment.  Moreover, if minded to make such a comment, it is plain that the risk of giving an impression of prejudgment will arise if it is not made clear to the parties that any views expressed are but provisional, that the tribunal’s mind is not yet made up and that it remains open to persuasion.”
74.	The remainder of paragraph 14 is also important because it shows that it was the District Judge’s remarks at (10) to (12) which established the bias:
But it is the caveat in it which is particularly important to the present case. If the judge’s remarks had ended at (9), he would have done no more than tell the defendant’s counsel that he had not in the judge’s eyes succeeded in discrediting the claimants’ evidence, leaving open the impression which the defendant would now make. But the judge went on to close this door, having already told counsel that he did not see how the defendant could win, by expressing the view that his insistence that there were only two people in the car was, in paraphrase, rigid thinking typical of members of the police service. 
5. Discussion
75.	It is, to my mind, plain that this is a very different case from Amjad. First, it is not a case where no evidence has been given by Mr Howe. Rather it is a case where both sides have given evidence and Counsel has had the opportunity to make such submissions as he thought appropriate about the evidence. Second, the assessment of Mr Howe was made precisely when it ought to have been made – in the draft judgment. There can be no criticism of the Recorder in assessing the witnesses at that time. Indeed it was part of his duty to do so. Even though the Recorder invited further submissions on Claims 6 and 7 that did not prevent him from dealing with the other claims. In order to do so he needed to assess the credibility of the witnesses. Third, there is nothing in the Recorder’s draft judgment to indicate that he was guilty of rigid thinking against Mr Howe such as the District Judge demonstrated in Amjad. The Recorder’s assessments were based on the evidence and the impressions on him in the witness box. An important factor was the attempt by Mr Howe to bribe his son to give evidence in accordance with Mr Howe’s views. In the result I do not gain any assistance from Amjad which seems to me very much a case on its own facts. It does not surprise me in the least that it was not referred to in either Otkritie or Harb.
76.	In my view this case is governed by the general rule as set out in paragraphs 13 and 22 of Otkritie. In my view the Recorder asked himself the right questions and gave the right answers. He asked himself if he felt any bias against Mr Howe and answered in the negative. He then applied the correct test as to imputed bias. In the light of the further guidance in paragraphs 69 – 72 of Harb he was entitled to conclude that a fair minded and informed observer would not consider that there was a real possibility of bias. 
77.	I note that the Recorder expressly considered and made the point that he would have no regard to extraneous matters and holds no predilections or preferences. There is no evidence to suggest that he is wrong about that. I note from paragraphs 13 and 22 of Otkritie that there must be substantial evidence before the general rule can be overcome.
78.	In his supplemental skeleton argument Mr Cameron sought to argue that the passage I have set out from the Form N460 is “entirely wrong”. With respect I do not agree. It has to be borne in mind that the Recorder has made findings in relation to Claims 1 to 5 and Claim 8.  With the exception of Claim 3 there is no overlap between these claims and the allegations of trespass/proprietary estoppel in relation to the green/yellow land. Furthermore, the Recorder’s findings on Claim 3 were related to the construction of the covenant and not to the overlapping trespass allegations. He is dealing with those allegations in Claims 6 and 7. The amendment to the Counterclaim related solely to the relief claimed in Claims 6 and 7. In my view the Recorder was fully entitled to say that his findings in relation to Claims 1 to 5 and 8 would stand and would not be relitigated. It was a proportionate course to take. I do not read the paragraphs as suggesting that the Recorder has closed his mind in relation to Claims 6 and 7. Accordingly the findings in relation to those Claims in his second draft judgment can only be regarded as provisional views and will have to be reconsidered in the light of the fresh evidence permitted by the Recorder. It has to be remembered that the purpose of Form N460 is to provide brief reasons for refusal of permission to appeal. It is not to be construed as an Act of Parliament. This is especially the case where, as here, the Recorder has provided a written decision which set out his reasons in detail.
79.	Mr Cameron also suggested that there was animus by the Recorder against him and Mr Howe. There is no evidence of animus against Mr Howe. The reference to Mr Howe’s chronic illness does not, to my mind, amount to a criticism of Mr Howe. If anything it is a criticism of Mr Cameron for suggesting a trial in Leeds when Mr Howe was unfit to travel to Leeds. 
80.	It is true that the judgment contains some criticisms of Mr Cameron. There is a reference to Mr Cameron not being aware of Otkritie and in a footnote a criticism of Mr Cameron presenting the Recorder with a comprehensive list of grounds of appeal. It is, however, clear from paragraph 71 of Harb that it does not follow from this that there is a real possibility that it will affect the Recorder’s approach to the parties and jeopardise the fairness of the proceedings. In any event the Recorder made it clear that his observations played no part in his decision not to recuse himself.
81.	For all these reasons this appeal is dismissed. My provisional view is that costs will follow the event.