Defendant’s, having been told that the Master hearing their case found their evidence to date unreliable, applied to him to recuse himself. He refused and the parties now appealed from his refusal of that application.
Held: The appeal was refused.
Morris J extracted eight principles to be applied when a judge considered an application for his recusal: ‘1. The fundamental test is that laid down in Porter v Magill, namely whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the tribunal was biased.
2. There must be substantial evidence of actual or imputed bias before a recusal application will succeed.
3. Where there is real ground for doubt, that doubt should be resolved in favour of recusal.
4. Bias does not arise only where the judge might have a personal interest or connection with the case, but extends to any real possibility that a judge would approach the case with a closed mind or indeed with anything other than an objective view. A real possibility, in other words, that he might in some way have prejudged the case.’ (That is a quote from the case of Otkritie International Investment Management v Urumov [2014] EWCA Civ 1315).
‘5. That an example of bias is where, on any question at issue in the proceedings before him, the judge has expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind.’ (That is drawn from Locabail at [25].).
‘6. The use of intemperate language, questioning the good faith of the party’s application, or conduct which amounts to entering into the arena, can all result in loss of or perceived loss of the necessary objectivity and impartiality.
7. 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 one.
8. The mere fact that a judge, earlier in the same case or in a previous case, has commented adversely on a party or a witness, or found the evidence of a party or a witness to be unreliable, will not, without more, found a sustainable objection.’
Judges:
Morris J
Citations:
[2016] EWHC 2796 (QB)
Jurisdiction:
England and Wales
Cited by:
See Also – Newson-Smith v Al Zawawi QBD 21-Jul-2017
. .
Applied – Sandhu and Another v The Charity Commission and Others ChD 20-Apr-2017
Consideration of application for recusal of the judge.
Held: The judge had expressed doubts about the applicant’s credibility, but that was not enough on its own to require recusal. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 25 September 2022; Ref: scu.645942