Bahai v Rashidian: CA 1985

The claimant’s solicitor had given evidence in support of the claim and the judge had been very critical of that evidence. The defendant sought an order that the solicitor be jointly liable with his client for the defendant’s costs and the solicitor asked for the application to be heard by a different judge. The judge refused to make that order.
Sir John Donaldson MR said: ‘I accept that it must always be open to a judge to decline to proceed further with the hearing of any matter on the grounds that he is personally embarrassed by, for example, an appearance of bias. Subject to that, I have no doubt that it was the duty of (the trial judge) having heard and determined the issues in the action, himself to determine all applications as to the costs of the action . . the fact that a judge has determined the issues in the action and in doing so has expressed views on the conduct of the parties and of the witnesses, neither constitutes bias nor the appearance of bias in relation to subsequent applications in the action . . If the application can only be sustained by proof of serious misconduct or crime, the standard of proof should be higher than would otherwise be the case, but, subject to that, the application should be dealt with the same way as would any other application for costs against a solicitor.’
Parker LJ dissented as to the particular situation, but agreed as to the principles involved, saying: ‘Save in exceptional circumstances, it will be for the judge, who heard the case . . to determine the matter on a subsequent hearing . . there can be no doubt of this, the judge is dealing with the costs of an action which he has himself heard.’
Balcombe LJ said: ‘I accept that the judge has a discretion to direct that the application be heard by another judge, but the discretion is a judicial one, to be exercised in accordance with settled principles, of which one is undoubtedly that the application should be tried by the judge who heard the action unless there are compelling reasons to the contrary . . A judge properly exercising his judicial function, e.g. by criticising the conduct of a party’s solicitor in the course of his judgment on a matter which he considers relevant to his decision, cannot by that process be said to be biased. Bias is the antithesis of the proper exercise of a judicial function . . If such an application has to be heard by another judge, the procedure will lose its summary character. It will become even more expensive and time consuming than it is already, and the defendants are justified in their contention that the remedy of the party damnified by the solicitor’s misconduct will become illusory’.’

Judges:

Sir John Donaldson MR, Parker LJ, Balcombe LJ

Citations:

[1985] 1 WLR 1337

Cited by:

CitedOtkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 04 May 2022; Ref: scu.537708