Indispensable for a fair trial: an independent, impartial Judge
By John Donovan
Last weekend, The Sunday Times devoted almost an entire double-page spread and their main editorial to a series of court cases involving The Sunday Times that raised questions about whether judges should declare their interests.
The Sunday Times was being sued for libel and malicious falsehood by Peter Cruddas in relation to allegations about a “cash- for-access” report involving the Conservative party.
After a senior judge Mr Justice Tugendhat, had initially found in favour of Mr Cruddas on all counts in July 2013, The Sunday Times found out that the judge had close family links to the Conservative party. One of his sons, Tom, was being adopted as a Tory candidate.
Questions of transparency arose in respect of other judges who became involved in the case. Lady Justice Sharpe recused herself – standing aside voluntarily – only after the newspaper raised the subject twice after discovering her twin brother was a major Conservative donor.
Given the growing sensitivity about judicial transparency relating to the case, two judges, Lord Justice Rupert Jackson and Lord Justice Christopher Clarke, involved in an appeal court hearing on the case, deemed it appropriate to disclose that they had connections with Tory party 40 years earlier.
I found this all fascinating because of a court case I brought against Shell some years ago, which ended up in a three-week trial at the Royal Courts of Justice. Shell counter-claimed against my late father Alfred Donovan (then 82 years sold ) and me.
The trial was heard by Mr Justice Laddie QC (now also deceased).
Most would agree that a fair and just civil trial requires the following fundamentally essential ingredients:-
- No intimidation of witnesses.
- Full compliance with discovery obligations.
- Ideally, an equal weight of arms in terms of legal representation.
- Last, but not least, an independent, impartial Judge.
I will deal only with the last ingredient, other than to say that the first three were missing.
Because of certain extraordinary events that occurred during the trial, we wrote to the Judge after the trial asking him to confirm that he had no connection with Tom Moody-Stuart, the barrister son of the then Royal Dutch Shell Chairman, Sir Mark Moody-Stuart.
The judge was well aware of the personal involvement of the Moody-Stuart family, as we had hand-delivered to the court, at the commencement of the trial, an astonishing hand-written letter my father had received from Lady Judy Moody Stuart, with a follow-up post card from her, which had arrived prior to the trial commencing.
The judge would not confirm or deny his connection with Tom Moody-Stuart, who also declined to comment.
We wrote some years later to the Lord Chancellor setting out the extraordinary events in the trial and questioning the impartiality of the judge.
We subsequently wrote to every MP, providing a link to our letter to the Lord Chancellor. We were also in extensive correspondence about Mr Justice Laddie, Shell and related matters, with then Prime Minister Tony Blair, via 10 Downing Street (and various government departments).
We published all of the correspondence on the Internet.
Thus, Mr Justice Laddie was undoubtedly well aware of our views and was placed in a very difficult position, with his credibility and reputation being publicly called into question at the highest levels of the state.
The correspondence ended on 21 April 2005.
By coincidence or otherwise, just eight weeks later, Mr Justice Laddie resigned in controversial circumstances (June 2005). As a result of all of the press coverage of the controversy, we became aware that Laddie had an even stronger connection with Shell that he had not disclosed. He joined the IP consultancy firm of his long time friend Tony Willoughby, which had Shell as a long-term client.
Shortly thereafter, Professor Sir Hugh Laddie was a speaker at a seminar organised by a Shell Legal Director who had been in attendance at the trial on a daily basis.
Doubts were raised about the reason the judge gave for his resignation (boredom), which caused a sensation in legal circles. John Walsh, a writer for The Independent newspaper asked, “What is one to make of the behaviour of Sir Hugh Laddie, better known as Mr Justice Laddie…”
Mr Justice Laddie was the first High Court Judge to resign for 35 years. He certainly seemed to have something on his mind.
Tragically, he passed away in 2008 as a result of cancer.
It was clear from tributes made at the time that he was a much liked and widely respected Judge.
I have no doubt that he was a decent man of high integrity and immense knowledge and expertise, fully deserving of the many tributes made to him by family, friends and colleagues.
However, having acknowledged his qualities and the respect in which he was widely and properly held, I have to say that we would never have agreed to him hearing the case if I had known of his undisclosed Shell connections.
There is not just the issue of deliberate bias, but unconscious bias.
Shell settled the case out-of-court, so there was no verdict in the normal sense.
However, the judge did insist on putting on the public record what are known as “Judges Comments” that were blatantly biased against me and in favour of Shell.
Shell had withheld the true terms of settlement from the Judge. This is confirmed in an email sent to me by the same Shell Legal Director on 17 June 2008. (I did not know at the time of the trial that this information had been withheld from the Judge)
Consequently, at the time of making his injudicious comments, which Shell later used against me, the Judge was totally unaware that Shell had paid my legal fees and that I had received a secret payment. He thought I had surrendered when in fact it was the other way round. I would not agree to settle without at least a token, but not insubstantial payment.
Shell had already settled three previous high court actions I had brought for breach of confidence and breach of contract, all featuring the same dishonest Shell executive involved in the case heard by Mr Justice Laddie QC. Shell also settled two libel actions we brought against the company.
Big organisations such as the Conservative party and Royal Dutch Shell have far-reaching tentacles. It is essential, in the interests of justice, that judges openly declare any connections with any party involved in litigation being decided by them.
There is already a lack of a level playing field when David is fighting a financial Goliath, as was the case with my action against Shell.
It makes it even more vital that the impartiality of the judge is beyond reproach.