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Procedure.Tax
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N14. Judicial recusal
Judge should disclose material facts that might provide the basis for a reasonable apprehension of lack of impartiality
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“Where a judge is subject to a disqualifying interest of any kind ("actual bias"), this is almost always recognised when the judge first appreciates the substance of the case which has been assigned. The procedure is then quite clear: the judge should, without more, stand down from the case. It is rare in practice for difficulties to arise. Apparent bias may raise more difficult problems. It is not unusual for a judge, at the outset of a hearing, to mention a previous activity or association which could not, properly understood, form the basis of any reasonable apprehension of lack of impartiality. Provided it is not carried to excess, this practice is not to be discouraged, since it may obviate the risk of misunderstanding, misrepresentation or misreporting after the hearing. It is also routine for judges, before or at the outset of a hearing, to disclose a previous activity or association which would or might provide the basis for a reasonable apprehension of lack of impartiality. It is very important that proper disclosure should be made in such cases, first, because it gives the parties an opportunity to object and, secondly, because the judge shows, by disclosure, that he or she has nothing to hide and is fully conscious of the factors which might be apprehended to influence his or her judgment. When such disclosure is made, it is unusual for an objection to be taken.” (Davidson v. Scottish Ministers [2004] UKHL 34, §19).
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“The disclosure required to be given is of the material facts, not every background detail: see Resolution Chemicals at [42]. The judge did disclose the material facts. Armed with this information, Mr McLarnon was fully equipped to make the relevant application. No further disclosure was required.” (Watts v. Watts [2015] EWCA Civ 1297, §20).
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“The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties.” (Jones v. DAS Legal Expenses Insurance Co [2003] EWCA Civ 1071, §18).
Parties can make reasonable requests for further information
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“The point being made there is that a judge cannot be questioned about influences upon her with a view to making out a case of actual bias; but if a party has a reasonable request to make of a judge for relevant factual information in the context of an argument that an appearance of bias exists, in the absence of which the application cannot be made on the proper fully-informed basis which is required by the law, that passage does not prevent raising the difficulty with other counsel or the judge. This is not to encourage requests to judges to provide further information in relation to recusal applications: as I have emphasised above, a judge only has to provide relevant information which is material to the application and will in almost all cases have done just that. But there is no rule of law which prevents a party asking politely for more information if it exists and explaining why disclosure of it is required in order to enable the recusal application on grounds of appearance of bias to be advanced in a properly informed and effective way.” (Watts v. Watts [2015] EWCA Civ 1297, §24).
Having a preliminary view not ground for recusal
“the business of this court would not be done if we were to recuse ourselves for entering the court having formed a preliminary view of the prospects of success of the appeal before us.” (El-Farargy v. El-Farargy [2007] EWCA Civ 1149, §26, Ward LJ).
Private conversation questioning witness's honesty
"[7] The court accordingly rose to allow arrangements to be made. An associate took the judge's closed laptop through to her room but, unbeknownst to the judge, the remote link to the court room remained open. The judge was therefore overheard having a private conversation on the telephone with her clerk about the Appellant by a number of people who still remained on the call.
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[29] We find that a particularly troubling aspect is whether the fair-minded observer might consider that the judge had formed an unfair view of the Appellant on the basis of something that could have been but which was never put to her; namely, that she was inventing a cough in order to avoid having to answer difficult questions.
[30] We have considerable sympathy with the judge. We have, however, no hesitation in concluding that her comments did indeed fall on the wrong side of the line. The fact that the comments were intended to be private does not salvage the situation in circumstances where those comments were, unhappily, broadcast across the remote system and were made during the course of the Appellant's evidence. We agree with Ms Grief that unfiltered comments as an expression of frustration at a situation (here, further delay in an already delayed case) are different from negative and pejorative language about a party in the case, all the more so when made while that party is in the witness box at the time." (Re C [2020] EWCA Civ 987, King LJ)
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Part-time judge working with counsel for one party on separate matter not grounds for recusal
“In The Gypsy Council v United Kingdom (2002) 35 EHRR CD 96 the European Court of Human Rights dismissed as manifestly ill-founded an argument that Article 6 (right to a fair trial) was infringed on grounds of appearance of bias where a part-time deputy judge in a case involving gypsies on one side and a public authority on the other was a barrister in practice (David Pannick QC) who had been instructed as counsel for the government in numerous cases before the Court of Human Rights involving gypsies, in which he had argued that public authorities had not infringed the rights of gypsies: p. 101. The deputy judge in that case remained in practice and might hope to be so instructed by the government again, but still it was clear that no appearance of bias arose.” (Watts v. Watts [2015] EWCA Civ 1297, §28).
Part-time judge having an on-going barrister-client relationship with one party grounds for recusal
“The position is underlined by Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242. In that case, a personal injury claim was tried by a practising barrister and part-time judge sitting as a recorder, who was the head of the chambers to which both counsel for the claimant and counsel for the defendant belonged and who had also acted for the defendant or associated companies in the past and might do so in the future. This court rejected the suggestion that an appearance of bias arose by reason of the connection between the recorder and counsel through being members of the same chambers: [17]-[19]; it was only because the recorder regarded himself as having an on-going barrister-client relationship with the defendant that this court held he should have recused himself.” (Watts v. Watts [2015] EWCA Civ 1297, §28).
Part-time judge in same chambers as counsel for one party not grounds for recusal
“In Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113, Rix J dismissed an application to remove an arbitrator on grounds that "circumstances exist that give rise to justifiable doubts as to his impartiality" (section 24 of the Arbitration Act 1996) where the arbitrator was a QC practising in the same chambers as counsel for one of the parties in the arbitration.” (Watts v. Watts [2015] EWCA Civ 1297, §24).
Part-time judge having been instructed by one party on a number of occasions not grounds for recusal
“The notional fair-minded and informed observer would understand that a part-time judge's approach to the case she is trying and to her relationships with other professionals will be governed by these professional standards. There is no reason to think that a judge would allow her professional training and ethics to be overridden by a concern not to upset a junior counsel she is leading in other litigation. Moreover, the judge would know that the junior counsel would himself understand that she is bound by strict professional standards, and hence would have no expectation that she would do anything other than act in accordance with them. So the judge would not expect any disgruntlement or difficulty to arise in her relationship with the junior counsel even if she makes a decision adverse to him in the case she is trying. Accordingly, the idea that the judge would adjust her behaviour as judge to avoid upsetting the junior counsel is far-fetched indeed. The notional fair-minded and informed observer would not consider that there was any genuine possibility of this occurring.” (Watts v. Watts [2015] EWCA Civ 1297, §28).
Judge recusing himself to avoid distraction
“I however cannot allow my presence in the case and its difficulties to distract the parties from this case. And therefore, regretfully, I feel that I have no choice, whatever my feelings about it, but to recuse myself from the case, and that is what my decision is; not for the reasons put forward by BA, but for the reasons that I have said…This is a regrettable but necessary decision caused in my view entirely by BA's attitude and determination to achieve a result which is nothing to do with the problem. It is a regrettable feature that some litigants now regard a recusal application as one of the tools they can deploy in aid of their case. BA has finally achieved its aim. Neither of their attacks was in my view justified but ultimately they were successful for the reasons given.” (Emerald Supplies Ltd v. British Airways [2015] UKHC 2201 (Ch), §§41…44 – Judge made a complaint about lost luggage to British Airways and asked them what was happening in court).
Member recusing herself after hearing but before decision due to accepting employment with T’s representatives
“The Tribunal at the hearing consisted of Judge McKeever and Ms Gill Hunter. After the hearing, but before the decision was released to the parties, Ms Hunter was offered, and accepted, employment with the Appellant’s representative. The parties and their representatives were given the opportunity to make representations on the issue of apparent bias. Whilst no-one questioned Ms Hunter’s integrity or alleged that there was any actual bias, Ms Hunter considered that the proper course of action was to recuse herself. Accordingly, this decision has been made by the judge alone.” (Hotels4u.com Ltd v. HMRC [2016] UKFTT 718 (TC), §2).
Consequences of bias
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Disqualification not discretionary
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“This disqualification is not a discretionary case management decision reached by weighing various relevant factors (such as inconvenience, costs and delay) since there was either a real possibility of bias or there was not” (Howell v. Lees-Millais [2007] EWCA Civ 720 §6 and AWG Group v. Morrisson [2006] EWCA Civ 6, §6)
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“In terms of time, cost and listing it might well be more efficient and convenient to proceed with the trial, but efficiency and convenience are not the determinative legal values: the paramount concern of the legal system is to administer justice, which must be, and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having.” (AWG Group v. Morrisson [2006] EWCA Civ 6, §29)
Any doubt to be resolved in favour of recusal (better safe than sorry)
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“In most cases, the answer, one way or the other will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal…Where the hearing has not yet begun, there is scope for the sensible application of the precautionary principle. Prudence normally leans on the side of being safe rather than sorry.” (Howell v. Lees-Millais [2007] EWCA Civ 720 §6).