The question was whether a judge had been right not to recuse himself as the nominated judge of trial, in circumstances where he had had to hear, prior to trial, an application to commit one of the parties for contempt of court and had found a number of contempts proven, by reason of the doctrine of apparent bias in Magill v Porter.
Held: Although the principles of apparent bias are now well established and were not in dispute, the application of them is wholly fact sensitive. The critical consideration is that what the first judge does, he does as part and parcel of his judicial assessment of the litigation before him: ‘He is judging the matter before him, as he is required by his office to do. If he does so fairly and judicially, I do not see that the fair-minded and informed observer would consider that there was any possibility of bias.’
Rix LJ (with whom Toulson and Maurice Kay LJJ agreed) asked whether there could be any difference between the judge who bears in mind his own findings and observations and another (second) judge who reads what the first judge has written, as he must be entitled to do. He answered: ‘ . . unless the first judge has shown by some judicial error, such as the use of intemperate, let me say unjudicial, language, or some misjudgement which might set up a complaint of the appearance of bias, the fair-minded and informed observer is unlikely to think that the first judge is in any different position from the second judge – other than that he is more experienced in the litigation.
In this connection, it seems to me that the critical consideration is that what the first judge does he does as part and parcel of his judicial assessment of the litigation before him: he is not ‘pre-judging’ by reference to extraneous matters or predilections or preferences. He is not even bringing to this litigation matters from another case (as may properly occur in the situation discussed in Ex Parte Lewin; In re Ward [1964] NSWR 446, approved in Livesey v New South Wales Bar Association 151 CLR 288). He is judging the matter before him, as he is required by his office to do. If he does so fairly and judicially, I do not see that the fair-minded and informed observer would consider that there was any possibility of bias. I refer to the helpful concept of a judge being ‘influenced for or against one or other party for reasons extraneous to the legal or factual merits of the case’: see Secretary of State for the Home Department v AF (No. 2) [2008] 1 WLR 2528, para 53. I have also found assistance in this context in Lord Bingham’s concept of the ‘objective judgment’. The judge has been at all times bringing his objective judgment to bear on the material in this case, and he will continue to do so. Any other judge would have to do so, on the same material, which would necessarily include this judge’s own judgments.’
Judges:
Rix, Toulson, Maurice Kay LJJ
Citations:
[2012] EWCA Civ 1551, [2013] 1 WLR 1845, [2012] WLR(D) 366
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – JSC BTA Bank v Ablyazov and Others ComC 1-Nov-2012
The judge considered an application by a defendant that he recuse himself.
Held: He did not do so. . .
See Also – JSC BTA Bank v Ablyazov CA 6-Nov-2012
A appealed from three judgments of Mr Justice Teare under which the judge has respectively (i) found him guilty of contempt of court; (ii) sentenced him on each of three proven contempts to 22 months in custody concurrently; and (iii) in consequence . .
Cited by:
Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Cited – Otkritie 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.
Natural Justice
Updated: 09 November 2022; Ref: scu.466383