“It is of fundamental performance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” So, famously, declared Lord Hewart CJ. A recent Court of Appeal decision is a salutary reminder for tribunals – arbitrators, adjudicators and even judges – to keep their distance and not talk in private to one side only.  

Bubbles & Wine Ltd vs Reshat Lusha (March 2018) began life as an unremarkable dispute: the contractor claimed payment of the outstanding contract price; the employer counterclaimed damages for delay and defective works. The case only became noteworthy because of what happened after the trial had overrun, leaving no time for closing submissions. Directions were given for written closing submissions and the production of a list of issues. As the parties got up to leave the courtroom, the judge invited the contractor’s counsel, a Mr Varma, to remain behind to speak about a personal matter. The employer’s counsel, Mr Modha, consented.  

The judge and Mr Varma then had a private conversation. It began with the judge thanking Mr Varma and his chambers for hosting the judge’s daughter as a mini-pupil – a fact already disclosed to the employer. The judge then expressed views about the merits of the case, including that the employer’s counterclaim seemed weak, and that the contractor’s claim had evidential gaps. He asked for these views to be passed on to Mr Modha since it might assist with the production of the list of issues.  

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