Court proceedings — Apparent bias — Judge discovering proposed witness known to him — Judge deciding that risk of bias too small to recuse himself — Whether judge properly deciding not to recuse — Whether judge having discretion — Appeal allowed
Prior to the commencement of an action in respect of a takeover of the second respondent by the first respondent, the trial judge discovered that he knew one of the first respondent’s prospective witnesses. The judge alerted the parties and, in the week prior to the trial, the appellants applied for the judge to recuse himself on the basis that were he to try the case, there would be a real possibility of apparent bias. In order to avoid any potential problems with the witness’s evidence and to avoid embarrassing the judge, the respondents decided not to call the witness in question.
The judge applied the test for apparent bias, namely whether the circumstances pertaining to the suggestion that this decision could be biased would lead a fair-minded and informed observer to conclude that it was possible that the tribunal was biased.
Having balanced the risk of apparent bias against the disruption to the administration of justice that would be caused by having to find a different judge at short notice and the inevitable further costs to the parties of the ensuing delay, the judge concluded that the risk of bias was too small to drive him to recuse himself. The appellants appealed.
Held: The appeal was allowed.
The judge’s well-intentioned decision not to recuse himself had been wrong because it was in the interests of all concerned that he did not hear the case.
Disqualification of a judge for apparent bias was not a discretionary matter. Either a real possibility of bias arose, so that the judge was disqualified under the principle of judicial impartiality, or it did not, in which case there could be no valid objection to the judge.
On the issue of disqualification, an appellate court could place itself in the position of a fair-minded and informed observer who was aware of the relevant circumstances and could decide whether there was a real possibility of bias.
Although the judge’s concerns about the prejudicial effects of his withdrawal upon the parties and the administration of justice were understandable, they were irrelevant to the question of the potential of bias and of an automatic disqualification of a judge. The legal system was concerned with administering justice and this had to be seen to be fair and impartial both by litigants and fair-minded members of the public.
Amanda Harington (instructed by Dechert LLP) appeared for the first appellant; Philip Marshall QC and Deepak Nambisan (instructed by Olswang) appeared for the second appellant; Charles Aldous QC, Charles Béar QC and Dominic O’sullivan (instructed by Herbert Smith) appeared for the respondents.
Eileen O’Grady, barrister
