After a two-day hearing at The Royal Courts of Justice in London last week, three Court of Appeal Judges have retired to consider whether Johal should have the right to a retrial on the grounds that the original trial judge favoured JN witnesses and the whole trial was manifestly unfair.
Johal was originally found to have acted unlawfully in paying an illegal immigrant £40,000 to steal confidential documents from JN Dairies, which Johal then used to undercut its rival. But this "simple case mutated into a great conspiracy", according to Johal's barrister Tim Lord QC, "in which a number of prejudicial allegations of kidnapping, death threats, intimidation and bribes" were made. These should have led to an adjournment, he added.
Johal asked permission to appeal on the grounds that the original trial Judge His Honour Judge David Cooke "applied the wrong test to the evidence; failed to take any/sufficient account of the submissions made by Johal; adopted so flawed an approach as to render his factual findings wrong or unreliable and/or the trial unfair; and failed to take account of or refer to material evidence from JN Dairies' own witnesses and other material evidence which undermined JN Dairies' case".
The appeal was allowed to take place because such accusations against a judge by a QC were so serious. In fact the accusations were "unprecedented" in the legal world, and bordering on "malevolent conspiracy" according to barrister Vernon Flynn QC for JN Dairies. At no time during the trial did Johal, nor its legal team Druces, nor Tim Lord complain about the conduct of the trial, Flynn added.
However when Lord was pressed by the judges on whether he was directly accusing the original trial judge of having a closed mind or being biased, he said: "We are not saying the judge had a closed mind, we are saying that the judge informed too early the view that JND were the good guys and Johal the bad ones. But he favoured their witnesses, yes."
Lord Justice Mummery emphasised the seriousness of Lord's and Johal's allegations. "I have never seen this sort of appeal reason in 14 years as an appeal judge," he observed.
Lord Justice Mummery believed Lord was "very close to alleging actual bias".
The appeal judges are expected to deliver their verdict in a few weeks' time.