CONSUMER

Banking and finance &150; consumer credit agreements - credit cards - territorial application

Office of Fair Trading v (1) Lloyds TSB Bank Plc (2) Tesco Personal Finance Ltd (3) American Express Services Europe Ltd: CA (Civ Div) (Lord Justices Waller, Smith, Moore-Bick): 22 March 2006



The appellant OFT appealed against the decision ([2004] EWHC 2600 (Comm)) that certain credit card transactions entered into abroad did not attract connected lender liability under section 75(1) of the Consumer Credit Act 1974 and the respondent card issuers cross-appealed against the decision that liability under section 75(1) did apply to certain other transactions.


The OFT brought proceedings against the representatives (L) of the credit card issuers. It sought declarations that, in respect of all transactions financed by credit cards issued by L under consumer credit agreements regulated by the 1974 Act, L was subject to connected lender liability under section 75(1). This would mean that, in cases where a lender provided credit for the purchase of goods and services pursuant to arrangements between himself and the supplier, the debtor who had a claim for misrepresentation or breach of contract against the supplier would have a remedy against the lender as well.


The agreements between card issuers, cardholders and suppliers were described as a 'three-party structure'. Where a 'merchant acquirer', which recruited suppliers willing to accept an issuer's card, was interposed between the card issuer and the supplier as an independent party, the structure was described as a 'four-party structure'.


The judge granted the OFT a declaration that credit card transactions entered into under a four-party structure attracted connected lender liability, but dismissed its application for a declaration that a similar liability attached in respect of transactions entered into abroad, whether under a three or four-party structure.


The OFT contended that connected lender liability under section 75(1) arose in relation to any transaction financed by a credit card issued in the UK, whether the transaction was entered into under a three or four-party structure and whether the transaction was entered into in the UK or abroad.


L argued that section 75(1) did not apply to the four-party structure, whether the transaction financed by the use of the card was entered into in the UK or abroad, because that structure, involving independent merchant acquirers, had been practically unknown when the Act was passed.


Michael Briggs QC, William Hibbert, Josh Holmes (instructed by the Treasury Solicitor) for the appellant; Mark Hapgood QC, Maya Lester (instructed by Lovells and SJ Berwin) for the first and second respondents; Mark Howard QC, Iain Macdonald (instructed by CMS Cameron McKenna) for the third respondent.


Held, although the four-party structure was not common when the 1974 Act was passed, it did exist and despite the change in structure there had been no significant change in the state of affairs to which the legislation was originally directed (R (on the application of Quintavalle (on behalf of Pro-Life Alliance)) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687 considered).


An agreement under which a card issuer made credit available to the cardholder for use in connection with transactions occurring under a four-party structure fell within section 12(b) of the Act, with the result that connected lender liability attached to transactions entered into by the cardholder pursuant to it. Where credit was provided by a credit card issuer to enable the customer to enter into a transaction under a four-party structure, the credit agreement was a restricted-use credit agreement within the meaning of section 11(1)(b) of the Act. Whether under the three or four-party structure, the card could only be used to obtain goods and services from suppliers who had agreed to accept those cards. And, in such circumstances, the agreement was not excluded from the definition of a restricted-use credit agreement by section 11(3). The restricted-use credit agreement had been made by the card issuer 'under pre-existing arrangements, or in contemplation of future arrangements, between himself and the supplier' within the meaning of section 12(b).


The broad wording of section 12(b) had not been cut down by section 187(1) of the Act. Section 187 did not define the only kind of arrangements capable of falling within section 12(b). Even where merchant acquirers were involved, there were arrangements in existence between the card issuer and suppliers who had agreed to accept its card.


The fact that more credit card transactions were carried out abroad than in 1974 did not affect the basic elements of the credit agreement. As a matter of construction, the provisions of section 75 and the rest of the Act did not compel the conclusion that section 75(1) related only to transactions in the UK (Jarrett v Barclays Bank [1997] 3 WLR 654 considered).


Appeal allowed, cross-appeal dismissed.





CRIME


Computers - indecent photographs of children - interpretation - knowledge - deleted computer images - meaning of 'possession'

R v Ross Warwick Porter: CA (Crim Div) (Lord Justice Dyson, Mr Justices Grigson, Walker): 16 March 2006


The appellant (P) appealed against convictions for possessing indecent photographs of children contrary to section 160(1) of the Criminal Justice Act 1988.


The police had seized computer hard drives from P. They were found to contain numerous still images and movie files of child pornography. Some of the images and movie files had been deleted and the recycle bin emptied and, of the remaining still images, some had been saved in a database that contained 'thumbnail' images. All of the larger images had been deleted and could not be viewed by clicking on the thumbnail.


The prosecution conceded that the deleted items had been deleted before the date of possession contained in the indictment, that P did not have the software to retrieve or to view the deleted files and the thumbnail images were only retrievable using specialist forensic techniques that would not have been available to the public.


At the close of the prosecution case, P submitted there was no case to answer in relation to the deleted items as none of the items were in his possession for the purposes of section 160(1). The judge ruled there was a case to answer and that P possessed the files within the computer whether they were in an active or deleted category.


P contended that a person could not commit the offence of the possession of indecent photographs on the hard drive of a computer unless the images were readily accessible to him for viewing at the time when they were said to be possessed. P further contended that a person who had at some stage in the past been in possession of such images but who had taken all reasonable steps to destroy them or make them irretrievable was no longer in possession of them.


A H Milne (instructed by Edwards Duthie) for the appellant; A Korda (instructed by the Crown Prosecution Service) for the Crown.


Held, while the judge was right in refusing the submission of no case to answer, his summing-up was flawed as he failed to direct the jury about the factual state of affairs necessary to constitute possession. In the case of deleted computer images, if a person could not retrieve or gain access to an image, then he no longer had custody or control of it.


In interpreting the meaning of possession in section 160(1), there was no reason not to import the concept of having custody or control of the images. It would not be appropriate to say a person who could not retrieve an image from the hard drive was in possession of the image merely because he was in possession of the hard drive and the computer.


It would be for a jury to determine whether a defendant had possession of the image at the relevant time in the sense of custody or control of the image. If, at the alleged time of possession, the image were beyond a defendant's control, then he would not possess it.


It was for the jury to decide whether images were beyond the control of a defendant having regard to all the circumstances of the case, including his knowledge.


Appeal allowed.





DEFAMATION


Intention - intermediaries - Internet - libel - publication - responsibility - service providers - complaint about statements hosted on Web sites

John Bunt v David Tilley & 5 Ors: QBD (Mr Justice Eady): 10 March 2006


The applicant Internet service providers (L, T and S) applied to have defamation claims against them made by the respondent (B) struck out or summarily dismissed under rules 3.4(2) and 24.2 of the Civil Procedure Rules.


B had claimed that one or other of a group of individuals (G) had posted defamatory comments about his products on the Internet. B also sought damages and an injunction preventing L, T and S from supplying their services to G. B claimed that he had sent an e-mail to L asking for details of a customer who he claimed had committed an act of libel against his business.



B also relied on an e-mail that he claimed had been sent to T referring to a further posting that had allegedly libelled his business. S claimed that it had only become aware of any complaint when it was served with the claim form in the proceedings.


At the hearing, evidence was provided by a director of L as to the temporary storage of information by Internet service providers known as 'caching'.


The primary question was whether the facts pleaded were capable of giving rise to liability on the part of an Internet service provider for publication of material through its services.


L, T and S argued that the necessary ingredients for publication were missing. Alternatively, they argued that they were protected from an action in defamation by the Electronic Commerce (EC Directive) Regulations 2002. B argued that L and T fell foul of the provisions of section 1(1)(c) of the Defamation Act 1996 as a consequence of his e-mail notifications.


For the claimant: in person; Jane Phillips (instructed by Kirkpatrick & Lockhart Nicholson Graham) for the fourth defendant; Jonathan Barnes (instructed by Lawrence Stephens) for the fifth defendant; Sapna Jethani (instructed by Catherine Lloyd) for the sixth defendant.


Held, publication was a question of fact and it had to depend on the circumstances of each case whether or not publication had taken place. In determining responsibility for publication, the state of a defendant's knowledge could be an important factor. In his e-mail to L, B was simply requesting the identity of the person who had made the comments about which he was complaining. In order to impose a legal responsibility, it was essential to demonstrate a degree of awareness or at least an assumption of general responsibility (McLeod v St. Aubyn [1899] AC 549 applied).


As a matter of law, an Internet service provider that performed no more than a passive role in facilitating postings on the Internet could not be deemed to be a publisher at common law, Godfrey v Demon Internet Ltd [1999] 4 All ER 342 considered. In all the circumstances, there was no prospect of B establishing that L, T or S had knowingly participated in the relevant publications.


L, T and S fell within the definition of an 'information society service' for the purpose of the 2002 regulations. The purpose of regulation 18 was to protect Internet intermediaries in respect of material for which they were not the primary host but which they stored temporarily on their computer systems for the purpose of enabling the efficient availability of Internet material. In the instant case, the unchallenged evidence of L was that the storage of relevant material on its Web cache was temporary and to enable more efficient transmission of information to Internet users.


Although the regulations did not preclude the grant of an injunction in a proper case, the relief sought by B was disproportionate to any conceivable legitimate advantage. Any order preventing the supply of services to G would be Draconian and of little effect, since they would be able to obtain such services elsewhere.


As the e-mail notifications to L had not put it on notice or given staff reason to believe they were causing or contributing to the postings complained of, section 1 of the 1996 Act provided L with a defence to any claim relating to those postings. Similarly, T was also able to rely on the provisions of section 1.


B's claims were therefore struck out in accordance with part 3 and, as there was no realistic prospect of success on any of the causes of action, the criteria under part 24 would also be fulfilled.


Applications granted.





EDUCATION


Human rights &150; freedom to manifest one's religious belief - justification - right to education - school exclusions - school uniform

R (on the application of Begum (by her litigation friend Sherwas Rahman)) v Denbigh High School Headteacher & Governors: HL (Lords Bingham of Cornhill, Nicholls of Birkenhead, Hoffmann, Scott of Foscote, Baroness Hale of Richmond): 22 March 2006


The appellant school (D) appealed against the decision ([2005] EWCA Civ 199, [2005] 1 WLR 3372) that the respondent (B) had been unlawfully excluded from school for failure to comply with her school's dress code, and that her rights to education and to manifest her religion under protocol 1 of the European Convention on Human Rights and that articles 2 and 9 had been violated.


B was Muslim and wished to wear a jilbab to school rather than a shalwar kameeze as dictated by D's uniform policy. The uniform had been designed to serve the needs of a diverse community.


For two years, B had worn the shalwar kameeze without objection. D had refused to allow B to attend school in a jilbab. B maintained that the shalwar kameeze did not comply with the requirements of her religion. D's complaints committee decided that the uniform policy satisfied the requirements of the Islamic dress code.


There were three other schools in B's catchment area at which the wearing of the jilbab was permitted but B's application for admission to one of those was unsuccessful and it was maintained that the other two were more distant. B lost nearly two years' schooling before she was accepted by a different school.


The main issues were whether B's freedom to manifest her religious belief by her dress was subject to limitation within the meaning of article 9(2) and, if so, whether such limitation or interference was justified, and B had been denied access to education in breach of article 2.


Richard McManus QC, Simon Birks, Jonathan Auburn (instructed by the local authority solicitor) for the appellants; Cherie Booth QC, Carolyn Hamilton, Eleni Mitrophanous (instructed by Sharpe Pritchard as agents for Children's Legal Centre) for the respondents; Jonathan Crow (instructed by the Treasury Solicitor) for the intervener Secretary of State for Education and Skills.


Held, (Lord Nicholls of Birkenhead and Baroness Hale of Richmond dissenting on the issue of whether there had been an interference with B's right to manifest her religion) what constituted interference depended on all the circumstances of the case, including the extent to which an individual could reasonably expect to be at liberty to manifest his beliefs in practice (R (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246 and Kalac v Turkey (1997) 27 EHRR 552 considered).


In this case, B's family chose for her a school outside their own catchment area. There was no evidence to show that there was any real difficulty in her attending one of the three schools in her catchment area that permitted the wearing of the jilbab.


The shalwar kameeze was worn by B for her first two years, without objection. It was, of course, open to B to modify her beliefs, but she did so against a background of free and informed consent by her and her family. On the facts, there was no interference with B's right to manifest her belief in practice or observance.


The Court of Appeal had erred in its approach under article 9. The focus at Strasbourg was not and had never been on whether a challenged decision or action was the product of a defective decision-making process, but on whether, in the case under consideration, B's convention rights had been violated. The court's approach to an issue of proportionality under the convention had to go beyond that traditionally adopted to judicial review in a domestic setting (R v Secretary of State for the Home Department Ex p Daly [2001] UKHL 26, [2001] ACD 437 considered). Proportionality had to be judged objectively (Williamson considered).


Therefore, it was necessary to consider the proportionality of D's interference with B's right to manifest her religious belief, having regard to the guidance in Sahin v Turkey [2005] 44774/98. On the facts, D was fully justified in acting as it had done. It had taken immense pains to devise a uniform policy that respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. The rules were acceptable to mainstream Muslim opinion.


It would be irresponsible of any court, lacking the experience, background and detailed knowledge of the headteacher, staff and governors of D, to overrule their judgment on a sensitive matter. The power of decision had been given to them for the compelling reason that they were best placed to exercise it, and there was no reason to disturb their decision.


B had not been denied access to education in breach of article 2. The two-year interruption in B's education was the result of B's unwillingness to comply with a rule to which the school was entitled to adhere and of her failure to secure prompt admission to another school where her religious convictions could be accommodated (Ali v Lord Grey School Head Teacher and Governors [2006] UKHL 14 considered).


Appeal allowed.





INSURANCE


Negligence - assumption of responsibility - causation - contracts - declarations - duty of care - insurance brokers - measure of damages - mitigation - oil and gas industry

BP Plc v (1) Aon Ltd (2) Aon Risk Services of Texas Ltd: QBD (Comm) (Mr Justice Colman): 13 March 2006


The claimant insured (B) brought proceedings against the defendant broker (X), claiming that X had owed it a duty of care to make effective declarations to all relevant underwriters under a global construction, all-risks, open-cover agreement relating to oil and gas construction projects throughout the world.


The open cover had been agreed between the international group of companies to which X belonged (G) and a company with whom B later merged. A service agreement was entered into, setting out the terms on which G was to act as broker under the open cover.


In order for a contract of insurance to be created under the open cover in respect of a particular project, a declaration in respect of that project had to be delivered to each of the relevant underwriters. However, X, a company within G based in London with whom B conducted its dealings, made declarations only to the leading underwriters. As a result, B was unable to recover the full value of claims in respect of projects that should have been declared.


G conceded that in carrying out broking services under the service agreement, it had been negligent in, among other things, mistakenly believing that the leading underwriter endorsement had the effect that declarations to the leading underwriters bound the following market.


G argued that there had been no assumption of responsibility by X to B, because all of X's activities had been carried out pursuant to the contractual framework of the service agreement. Assuming that liability was established, given that B's loss had crystallised at the time when it became aware for the first time that the declarations were seriously disputed, the correct measure of damages was not the amount of all the losses that B would have been entitled to recover from the underwriters to whom declarations had not been made but the cost to it of purchasing alternative insurance in the market, together with any shortfall in recovery under the replacement insurance.


A Popplewell QC, R Masefield, F Pilbrow (instructed by Herbert Smith) for the claimant; George Leggatt QC, T Weitzman QC, P Ratcliffe (instructed by Simmons & Simmons) for the defendants.


Held, the conduct of X, judged objectively, amounted to a sufficient undertaking of responsibility to make declarations to all relevant underwriters. There had been adopted such a close relationship between X and B involving repeated direct contact between them that the substance of G's representation to B was that X was to perform such a crucial function in the process of effecting valid cover that, in spite of the initial undertaking of G to effect cover, X was independently to be responsible for obtaining that cover. For that purpose, it was clearly not necessary that there should have been express words to the effect that B would have a right of action against X; it would be enough if B was entitled to infer from what was said and done that X was to provide its professional services with regard to declarations and that X could be relied on by B as undertaking responsibility to provide those services in accordance with the proper professional standards of an insurance broker on the London and European markets (Henderson v Merrett Syndicates Ltd [1994] CLC 918, Riyad Bank v Ahli United Bank (UK) plc [2005] EWHC 279 (Comm), [2005] 2 Lloyd's Rep 409 and Punjab National Bank v De Boinville (1992) 141 NLJ 85 applied).


Furthermore, having regard to the terms of the service agreement, its existence did not displace the duty of care owed by X to B. Such contractual structure as there had been did not preclude X's conduct from amounting to an undertaking of responsibility in tort. X had breached its duty of care to B as and when it failed to make timely declarations to the relevant underwriters.


The earliest point in time at which B could reasonably have ascertained that it could not recover under the open cover against the underwriters to whom declarations had not been made had been when the judge, in an action between B and those underwriters, had held that declarations should have been made to each underwriter ([2003] EWHC 344, [2003] 1 Lloyd's Rep 537).


The judge's ruling had been made much later than the date relied on by G as the date when B's loss crystallised. B's omission to take out alternative insurance was not in all the circumstances at any stage before its pleaded losses were sustained so great a departure from what could reasonably be expected from an oil company in its position as to break the chain of causation or to represent conduct so unreasonable as to amount to a failure to mitigate. The measure of damages was therefore to be based on the amounts that would have been recovered from the underwriters to whom declarations had not been made.


Judgment for claimant.




Films - brokers - claims - loan notes - loss - reinsurance - warranties - duty of broker to draw insurer's attention to issues on coverage - causation of insurer's loss

HIH Casualty & General Insurance Ltd v JLT Risk Solutions Ltd (formerly Lloyd Thompson Ltd): QBD (Comm) (Mr Justice Langley): 15 March 2006


The claimant insurers (H) claimed against the defendant insurance broker (J) in negligence for damages in relation to losses incurred when H were unable to recover from reinsurers monies paid out in relation to film finance insurance.


The assured (L) had held loan notes as trustee for investors who had provided funding for the production of slates of films. J placed the insurance with H and the reinsurance with various other companies.


The risk insured was that the slates of films might not generate enough revenue to repay the loan notes. Slip policies provided for slates of six, ten and five films respectively. Wordings were agreed shortly after the slip policies described as pecuniary loss indemnity policies (PLIPs). The PLIP wordings contained a 'Disclosure and/or waiver of rights' clause by which H agreed 'to the fullest extent permissible' not to seek to avoid or rescind the PLIP.


Fewer films were made than stipulated and the film slates were unsuccessful, generating significantly less revenue than was needed to repay the loan notes. L claimed under the insurance contract in respect of all three slates of films and H paid out substantial sums under the three claims. H sought an indemnity from the reinsurers but the larger companies opposed the claims on the basis that there had been a breach of warranty as to the number of films to be produced.


The Court of Appeal ([2001] EWCA Civ 735, [2001] 2 All ER (Comm) 39) confirmed that there were warranties regarding the number of films to be made in both the insurance and reinsurance contracts, and that the relevant warranty had been breached. Risk management reports had been circulated to H and the reinsurers referring to the reduction in the numbers of the films.


It appeared that neither H nor one of the larger reinsurers considered the reduction to be a matter of moment. H was under some pressure to pay the claims as there was a risk of receiving an unfavourable security rating and bad publicity if it did not. H also received advice that the reduction in number of films did not give rise to a right to reject the second claim.


It was H's intention to seek immediate recovery of the sums paid from the reinsurers. H submitted that J was in breach of duty in failing to inform them about the significance in the reduction in the number of films and that it constituted a material change in the risk in each case. It was argued that J should have drawn H's attention specifically to the point and asked them what they wanted to do.


J Flaux QC, S Picken (instructed by Holman Fenwick & Willan) for the claimant; T Weitzman QC, J Davies-Jones, A Kramer (instructed by Eversheds) for the defendant.


Held, whether a broker owed a duty of care to an insurer post-placement, and the scope of that duty, had to depend on the circumstances of the case (Youell v Bland Welch & Co Ltd (No 2) [1990] 2 Lloyd's Rep 431 considered). J should have read the risk management reports carefully and if any of the information was a matter of potential concern on coverage issues, it should have alerted H and the reinsurers to it. There could be no argument that J was under no duty to act on behalf of H as regards the reinsurers unless it was instructed to do so.


While the evidence showed that H were aware of the reduction in the films through the risk management reports, had J raised the matter directly with H the focus would have been sharper. It followed that J was in breach of duty in failing to properly alert H to the significance of the reduction in the number of films.


It could be inferred from the evidence that if J had raised the matter direct with H, H would have wanted to know the views of reinsurers and would have asked J to ascertain them. The question of what would have happened next then had to be addressed. There was no compelling reason why the attitude of the reinsurers would have been any different if the issue had been raised with them earlier. H had failed to prove that even if J had raised the reduction in the films with H and the reinsurers, the reinsurers would have agreed to the reduction in any way that would have resulted in their being legally bound to indemnify H in the event that H paid L. H had not come close to establishing that if the views of the reinsurers had been known earlier, H would not have paid the claims as they had done and would not have suffered any loss.


H had paid the claims in circumstances where they had known of the reduction in the films and were aware of the contention of the non-paying reinsurers in relation to the second and third claims that the reductions in the films entitled them not to pay the claims. There would have been no reason for the advice given to H to have been different and the financial pressures on H would still have been present. It followed that H's claim failed because it had failed to prove that the loss for which it claimed was caused by J's breach of duty.


Judgment for defendant.





LAWYERS


Administration of justice - civil procedure - barristers' powers and duties - bias - judges - waiver

Peter Smith (appellant) v Kvaerner Cementation Foundations Ltd (respondent) & Bar Council (intervener): CA (Civ Div) (Lord Chief Justics Lord Phillips, Master of the Rolls Sir Anthony Clarke, Lord Justice May): 21 March 2006


The appellant (S) appealed against a recorder's dismissal of his claim against the respondent company (K) for personal injuries on the basis that there had been an appearance that the recorder was biased. The recorder who had heard the action was the head of the chambers to which the barristers for both K and S belonged, and had acted and continued to act for a company in the same group as K.


Prior to the hearing, he had taken steps to inform S of those professional relationships. S's barrister had advised him at the time that on the basis of the recorder's relationship with K's group, he could apply for an adjournment so that the action could be tried by a different judge, but had strongly advised him against taking such a course and had expounded on his knowledge of the recorder's personal integrity. S's barrister had also referred to the costs that would be thrown away if the trial had to be adjourned. S had made no objection at the time.


It was common ground that the recorder's professional connection with K precluded him from sitting as judge in the case unless S had waived his right to object.


S submitted that there could be an appearance of bias because there could be circumstances in which a recorder's ruling made against counsel from his own chambers could have financial implications for the chambers as a whole; a fair trial was put at risk where a recorder was the head of chambers of counsel appearing before him, because his support, or lack of support, could have a significant effect on the career of an individual member of chambers; the events that occurred just before and just after the start of the hearing of S's case had fallen far short of what the law required if a judge's connection with one of the parties was to be waived.


Anthony Speaight QC, Kate Livesey (instructed by the Bar Pro Bono Unit) for the appellant; Philip Turton (instructed by Kennedys) for the respondent; Bankim Thanki QC for the intervener.


Held, changes in the way that some chambers funded their expenses and the fact that counsel could act under a conditional fee agreement meant that, in some cases, there might be grounds for arguing that a recorder should not sit in a case in which one or more of the advocates were members of his chambers. However, those special considerations did not apply in this case.


The assertion that a fair trial was put at risk where a recorder was the head of chambers of the barristers appearing before him was at odds with the high professional standards observed by the bar.


The party waiving should be aware of all the material facts, and of the consequences of the choice open to him, and be given a fair opportunity to reach an un-pressured decision (Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, R v Bow Street Stipendiary Magistrate Ex p Pinochet (No2) [1999] 2 WLR 272 and Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 applied).


In this case, not all of those requirements were met. S had not been given any information as to how quickly his case could be tried if he insisted that it should be transferred to another judge.


The recorder should at the outset have explained to S what the options were and made sure that he was content that the recorder was to try the case. It had been inappropriate for S's barrister to advise S strongly against seeking an adjournment so that the matter could be tried by a different judge, and to expound on his knowledge of the recorder's personal integrity as it made it very difficult for S to opt for an adjournment.


Also, it had not been appropriate to seek to dissuade S from asking for another judge by referring to the costs that would be thrown away. It was not a part of counsel's duty or appropriate for counsel to seek to influence the decision to be taken by the client. The choice was the client's and, while it was proper for counsel to inform the client of the implications of the choice, it was not appropriate for counsel to urge the client to waive his right to object to the tribunal.


Accordingly, S's decision to agree to the recorder continuing to try his case was not made freely. Moreover, it was not made with knowledge of all relevant information because S was not told when the trial could take place before a different judge. In consequence, S's decision did not amount to waiver of his right to complain of bias.


The interest of justice would be best served if there were a retrial of S's claim.


Appeal allowed.