The claimant asked a judge to recuse himself from continuing to hear an appeal and an application brought by him in connection with the striking out of his claims.


The claimant had brought claims for damages against 19 defendants. When all but one of his claims were struck out he appealed against the judge’s refusal to grant him an adjournment and he applied to set aside the striking out. The appeal and the application came before the instant judge for a five-day hearing in December 2015. On the final day of the hearing the judge read out in court a letter from the ninth defendant, who was neither present nor represented. The letter had not been in the trial bundle and it set out the ninth defendant’s opposition to the appeal and application. The judge said that the letter had had been placed amongst his papers at the start of the hearing and that, not having been referred to it during the hearing, he had opened it for the first time immediately before reading it out in court. He reserved judgment, indicated that the parties should receive a copy of the letter, and gave them time to respond. After filing material in response to the letter, the claimant asked the judge to recuse himself.


The claimant set out a number of points which, he submitted, would lead a fair-minded and informed observer to conclude that there was a real possibility of bias.


HELD: Applications for recusal involved a tension between the principle that justice had to be seen to be done, and the principle that litigants could not choose their judges. Any real ground for doubt had to be resolved in favour of recusal, Locabail (UK) Ltd v Bayfield Properties Ltd (Leave to Appeal) [2000] Q.B. 451 followed. Determining whether there was real ground for doubt involved ascertaining all the relevant circumstances and assessing whether they would lead a fair-minded and informed observer to conclude that there was a real possibility of bias, Porter v Magill [2001] UKHL 67, [2002] 2 A.C. 357 followed. It was important for judges to resist the temptation to recuse themselves just because that would be more comfortable for them, Triodos Bank NV v Dobbs (Application for Stay of Appeal) [2005] EWCA Civ 468, [2006] C.P. Rep. 1 followed. Applying those principles to the claimant’s points led to the following conclusions (see paras 16-17 of judgment).


(1) No fair-minded and informed observer would regard the fact that the judge had not said where he got the letter from as an indicator of a real possibility of bias. They would not presume that he was withholding some knowledge, and would have no ground for thinking that how the letter had been sent favoured one side or the other (para.19).


(2) No fair-minded and informed observer would doubt that the judge had opened the letter for the first time immediately before reading it aloud in court on the last day of the hearing. To suggest that he had read it earlier was an attack on his truthfulness, and a fair-minded and informed observer would not think that he was lying (paras 20-23).


(3) Any mistakes that the judge might have made when he read out the letter, such as saying “obtained” where the text said “signed”, or omitting to read aloud the rubric “by hand” had no bearing on the issues. In any event, he had made it clear that the parties would be given a copy of the letter. The fact that an oversight had led to a delay in that happening did not indicate that the judge was biased against the claimant: all the parties were affected (paras 24-26, 28-29).


(4) The court had provided each party with a photocopy of the letter. The claimant suspected that the copy was not a true one and that there was some conspiracy to keep the letter from him. He sent a tide of emails to the judge on the subject. The judge answered his questions, then asked him to desist. A fair-minded and informed observer would regard that not as bias but as an attempt to stop a huge waste of money on a matter of no real significance to the appeal or the application (paras 30-36).


(5) There was nothing in the claimant’s submission that the judge had treated him unfairly by admitting the letter into evidence. The letter had not been admitted into evidence; the judge had simply read it out and given the parties the opportunity to respond (para.37).


(6) A fair-minded and informed observer would not conclude that the judge had come to the case without having read all the papers, closed his mind to the claimant’s submissions, and regarded him as a vexatious litigant. On the contrary, they would see the judge’s anxiety to draw the claimant’s attention to relevant points, his desire to engage with his complex and not readily comprehensible submissions, and his desire to keep the case within its allotted time. They would also see that he had given the claimant a generous amount of time to develop his arguments (paras 38-43).


(7) The decision in Lesage v Mauritius Commercial Bank Ltd [2012] UKPC 41 did not help the claimant. Lesage Considered. The judge had taken exactly the course contemplated by the Privy Council in that case; having become aware of a communication from a party he had drawn it to the attention of all the parties and given them an opportunity to respond (paras 44-48).


Application refused

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