In the recent case of Mengiste and another v Endowment Fund for The Rehabilitation of Tigray and others  EWHC 857, the High Court Judge, Peter Smith J, refused to recuse himself from hearing an application for wasted costs on the grounds that his previous criticisms prevented him from trying the issue objectively.
The case concerned a foundation in Ethiopia. In early March, Peter Smith J released a draft judgment in respect of the case which was very critical of the claimant’s expert, Mr Jones, who had given evidence on Ethiopian law. The judgment described Mr Jones’ evidence as “inappropriate” and “tedious”, and went on further to suggest that he had failed in his duties to the court under CRP 35. Peter Smith J found Mr Jones to be totally inexperienced and bias; in that he moved away from objectivity toward arguing the claimant’s case.
Upon reading the draft judgment, the defendant’s solicitors wrote to the claimant’s solicitors, indicating their intention to make a wasted costs order application. The claimant’s solicitors tried to argue that this would be premature on the basis that their suggested amendments to the draft judgement were yet to be considered by Peter Smith J. However, Peter Smith J, who was copied into the relevant correspondence between the parties, told both parties that they could assume the claimant’s suggestions as being rejected.
The defendant made an application for a wasted costs order, and the claimant asked Peter Smith J to recuse himself from hearing the application.
On 22 March 2013, Peter Smith J handed down the final judgment in the main action and considered the recusal application.
Peter Smith J held that the claimant had failed to establish a basis for recusal as he did not consider his previous criticisms to be so extreme and unbalanced as to impugn his ability to try the issue objectively.
Peter Smith J considered that there was no doubt that Mr Jones was one of the worst expert witnesses ever to give evidence before him. It was therefore necessary, in his opinion, that the claimant’s solicitors be criticised for allowing evidence to be given which was contrary to Article 7 of the Expert Evidence Protocol and CRP 35. However, the mere fact that Peter Smith J had criticised the claimant’s solicitors was not enough for him to be recused from hearing the wasted costs application.
The wasted costs order was subsequently made.
This case provides useful guidance regarding how recusal applications should be considered. It demonstrates that it is not enough to base an application on the fact that a judge has been critical of a party’s actions; but that the criticism is extreme or unbalanced. Only in these circumstances can there be said to be a real possibility that the fair-minded observer would conclude that the judge could not act impartially.
This case also emphasised the importance of lawyers and experts being aware of their duties to the court in respect of expert evidence.