A judge should recuse himself in a civil case only if, subjectively, he considered that the knowledge he acquired of privileged communications disabled him from fairly continuing with the case or, objectively, a fair-minded and informed observer would conclude that there was a real possibility or a real danger that there could not be or would not be a fair trial.
Stanley Burnton J said: ‘The procedure of the court would be greatly hampered and the cost of litigation greatly increased if the court were too easily to come to the conclusion that the viewing of prejudicial irrelevant material necessarily disabled the court from continuing to hear the action. Prior to [the] Medicaments [case] it was not the case that the court would necessarily come to that conclusion as I have already indicated. In my judgment Medicaments has affected the test to be applied in such circumstances, but the effect is not as substantial as suggested by the defendant in this case. The Court of Appeal in the Medicaments case described the effect of the change in law which it was finding and did not regard that change as a substantial change. It referred to a modest adjustment of the test in Goff [1993] AC 646 . . Where a question such as that which has arisen in this case arises, in my judgment there are two aspects to the decision of the court whose recusation is sought. The first question is whether subjectively the judge considers that he is disabled from fairly continuing with the case. If he decides that he is so disabled then that normally is the end of the matter. The matter must be transferred to another judge and it can be only in the rarest cases that an appeal court would intervene to order for the hearing to continue before that judge. The decision is often said to be one within the discretion of the court, but essentially the decision is a subjective decision. That, however, is not the end of the matter.
As I have already indicated, there is a modified test as laid down in the Medicaments, which is an objective test to be applied. There are circumstances, in my judgment rare circumstances, in which whatever the subjective feeling of the judge in question, he cannot continue with the case without there being a real possibility or a real danger of there being seen to be, by a fair-minded and informed observer, an unfair trial.
The fair-minded observer will appreciate that the judge is not partial to either party, will appreciate that when the judge expresses his views as to whether or not he can continue, he is expressing those views honestly and unaffected by any connection with either party.’
Stanley Burnton J
[2002] 1 WLR 3271, [2002] All ER (D) 46, [2002] 4 All ER 87
Cited by:
Cited – Garratt v Saxby CA 18-Feb-2004
There had been a Part 36 offer to settle the action. It was disclosed inadvertently to the judge.
Held: There had been no serious procedural irregularity, and fairness and justice did not require a rehearing before different judge. . .
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Natural Justice
Leading Case
Updated: 10 November 2021; Ref: scu.464845