Prior to joining legal practice, I came across a concept called ‘recusals’. The more I researched this topic, the more I became fascinated with the issue of bias in the Court courtroom such as apparent, actual, and subconscious bias. Undoubtedly, like many advocates, I have come across some magnificent Judges, but like most of us, on some occasions, the experience has been somewhat concerning when we have witnessed their temper get the better of them causing damage to a good case that should have won.

What is a ‘recusal’?

A recusal is where a Judge/decision maker withdraws from a case, upon their own volition or by the request of one of the parties in a court case.

When does this become necessary?

Applications for a recusal can be widespread. Usually, they are made when Judge has some form of connection to the case before them. For example, they have determined a previous matter against one of the parties or know them very well. Alternatively, it may be that the Judge used to work for the firm representing one of the parties and knew about the case. Finally, they have made (or shouted) comments/remarks about one of the parties which would indicate they are biased. The latter is sadly one of the biggest problems I hear about. Many lawyers have many stories about Judicial conduct, as do I.

Cause for concern?

This is a slightly contentious topic which many lawyers approach with caution when advising litigants because there is always a fear that it may affect the cases outcome. Many of us advocates have been in a court room and listened to the tone in which a Judge has spoken or the way they have conducted themselves impacting upon the proceedings. In some cases, many of us have walked out of the Court room feeling short changed questioning our adversarial British legal system and its significance. Having made a few of these Applications myself for clients, I can honestly say, most of them in my experience fail. A longstanding case on this issue which lasted more than 10 years is the case of Bhardwaj v FDA & Ors (2020) ET which will give you a flavour. This explains the long road ahead for anyone who decides to take this route. In short you become so far detached from the case you initially brought, that you can sadly end up fighting a new and separate issue, the recusal of a particular Judge who holds onto your file until its bitter end.

Reactions by Judges to recusal applications.

I have heard many stories if the application fails, such as increased hostility. A common story is that the Judge ensures the case is reserved to themselves which means they will be the sole person taking charge of it and deciding on it.

Frivolous recusal applications.

There are cases where one party who has brought a case, either in bad faith or simply just poor in its merits, does not like to hear the hear the truth when the Judge gives their view. In these cases, I agree recusal applications need to be safeguarded and treated with caution, because the applications to recuse can be brought in bad faith when the Judge is simply telling one party how bad their case is.

Who determines the recusal application?

Believe it or not, the person who must decide if they should withdraw themselves from a case is the actual Judge you are asking to withdraw. Yes, it may sound odd, but it is true. In short, they must ask themselves if they are likely to be biased?

A psychological approach

Those who know the law in this area will be familiar with Porter v Magill [2001] UKHL 67 and  Ansar v Lloyds TSB Bank plc [2006] EWCA Civ 1462 which set down some principles which enable a Judge to decide if they should withdraw from a case or not. However, I sometimes wonder if the true test should be based on the psychology of self-awareness. In other words, because humans can naturally get self-defensive when someone says we are taking sides, I therefore ask, are Judges the best people to decide their own impartiality? This matter has also been examined in the American Courtroom by American Lawyer and expert in Psychology Jennifer Robbennaalt and the same issues appear to exist in the American jurisdiction on this topic.  One successful recent case in this field has been C (A Child) [2020] EWCA Civ 987. In this case the Judge was overhead talking about one of the parties to her clerk in a remote hearing.

A common feeling between advocates.

Post the refusal of a recusal it is pretty much a dead end and sadly in some cases, the party that asked for the recusal in my experience has always lost the case. The chatter in the side rooms of the Courts amongst advocates always is ‘the recusal rubbed the Judge up the wrong way’. This therefore leads to the question, how fair is this process?

Where can you turn?

Whilst you can appeal the case, and spend more money fighting an issue of bias which is something you never anticipated, the options are limited in my view. Whilst there are other ways Judges can be challenged, there may not always help the direction of the case.

There is some good guidance written by the Wellbeing at the Bar website dealing with issues such as shouting or sarcastic remarks made by Judges. https://www.wellbeingatthebar.org.uk/problems/bullying-barristers/

Many people are unaware, but you can complain about Judges to the Judicial Conducts Investigations Office https://www.complaints.judicialconduct.gov.uk/

Counsel Magazine has covered this topic in detail and there are some good tips in this article. https://www.counselmagazine.co.uk/articles/judicial-conduct-when-it-goes-wrong

Is the problem solved?

Sadly no, whether you are the advocate or the litigant in person and treated badly, the problem is, whilst you may raise a complaint about the Judge it means your case does not stop from being continued under their management. You may apply for a stay on proceedings until the recusal application is dealt with, but in my experience, this will not usually assist the process either as they could simply refuse that also. Some people have said to me they feel they feel they are trapped once the Judge has shown hostility towards their side and refuses to recuse. In short, they have said, they are damned if they continue with the case as they are bound to lose, and they are damned if they withdraw from proceedings as they will face heavy costs against the other side because of the Judge.

Conclusion.

What is the solution to this issue I ask? how can this be reformed (if at all) and can there be better regulation of these applications? Ideally one would hope for a body which determine the recusal applications? However, the working of any such body would have to wholly independent of the Judge and decision makers.