Court of Appeal considers recusal of a judge for bias

The first instance decision in this case was reported in Weekly Update 16/14. Eder J had concluded  that he ought to recuse himself from hearing committal proceedings against a defendant where he had  heard the original action against the defendant. Although the judge found that there was no apparent bias and that an allegation of actual bias was completely groundless, he held that the  allegation was so serious that he ought to recuse himself. The Court of Appeal has now held that  that decision was wrong. As Longmore LJ put it: “But can the mere elevation of the allegation from imputed bias to actual bias make a  critical difference? I  cannot think that it does. Of course such an allegation is an extremely  serious one; it should not be lightly made. But the mere fact that a litigant decides to raise the  stakes in that way cannot give rise to any difference of legal principle”.

Here, the judge had not focused solely on the issue to be decided in the committal proceedings  during the original trial and, furthermore, he had felt no “personal embarrassment or discomfort”  in considering the contempt application; indeed, he found the allegations against him to be  groundless. The Court of Appeal cautioned that it is “important that judges do not recuse  themselves too readily in long and complex cases, otherwise the convenience of having a single  judge in charge of both procedural and substantial parts of the case will be seriously undermined.  Of course, if the judge himself feels embarrassed to continue, he should not do so; if he does not  so feel, he should.”

In any event, the allegations made against the judge were not really allegations of actual bias,  even though that is how they were described by the defendant. Although, for example, it would be odd if a Commercial Judge  were to deliberately mis-state an elementary principle of law, there was in fact no mis-statement here, let alone a deliberate one. Finally, the judge had referred to the fact that  there was unlikely to be  any unnecessary delay in another Commercial Court hearing the  application. The Court of Appeal pointed out that “that cannot in itself be a good reason for  recusal any more than it could be a good reason not to recuse himself (in a proper case) that  another Commercial judge could not be made available”.