This week's caselaw

Shaw v Kovac: Court of Appeal dismisses recusal application

The claimant objected to two members of the Court of Appeal hearing her appeal and applied for recusal on the ground of apparent bias. Both judges had been involved in earlier decisions which had been adverse to the claimant. The claimant accepted that that alone did not support an argument for apparent bias but it was argued that in one decision, one of the judges had referred to a document which she has produced as "misleading" (and so was said to have impugned her integrity). The Court of Appeal rejected this as a basis for apparent bias, citing earlier caselaw in which it has been held that the mere fact that a judge has, in an earlier case, commented adversely on a party, or found the party's evidence unreliable, does not in itself form the basis of a sustainable objection. For example, in Otkritie v Urumov (see Weekly Update 38/14), the Court of Appeal had been critical of a trial judge who had recused himself in circumstances where he had previously made findings of fraud by a party.

A similar finding was reached in relation to the other judge, and it was pointed out that the test for apparent bias is an objective one: " the outcome cannot be determined by the subjective views or wishes of the objecting party…..any inclination to defer to the individual sensibilities of individual parties cannot of itself justify, let alone require, a judge in recusing himself or herself".

Sage v Hewlett Packard: Court of Appeal outlines correct procedure for committal proceedings

The appellant appealed against a conviction on nine grounds of civil contempt of court. All the contempts concerned failures by him to comply in certain ways with the terms of a freezing order and search order made against him earlier on.

The Court of Appeal accepted that none of the provisions of those earlier orders which the appellant had been said to have breached were included in the judgment of the judge (instead there had been reference to provisions of the order which had not been breached). The Court of Appeal held that this was not a "mere technicality": "On the contrary, committal proceedings based on alleged disobedience to court orders are of a quasi-criminal nature, and it is of cardinal importance that the alleged contemnor should have full notice of the charges which he has to face, and should not be at risk of being found guilty on any other grounds with which he has not been charged". The Court of Appeal went on to advise that it is "a salutary discipline for any judge who is delivering or writing a judgment on a committal application to set out each relevant ground of committal before proceeding to consider whether it is made out on the evidence to the criminal standard of proof". Accordingly, that part of the appeal was allowed.