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Bias & recusal: 'judicial discomfort at continuing with the case is not the test'

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In Akers v Kirkland [2019] EWHC 2176 (QB) the High Court has reaffirmed core principles around when (and whether) judges and tribunal members should recuse themselves because of apparent bias.

Mr Justice Waksman held that in this case, a District Judge had been wrong to recuse himself due to a connection between himself and counsel involved in the case, stating clearly that 'judicial discomfort at continuing with the case is not the test.'

The case arose out of county court litigation. That litigation settled, but it remained necessary to assess the costs of the respective parties' solicitors and counsel. The claimants instructed H as counsel throughout the case. After settlement, but before assessment, H became a full time District Judge in Birkenhead.

The judge assessing the costs – who sat in nearby Liverpool - held an initial directions hearing. At the conclusion of his written judgment, he indicated that he was 'exercising his discretion' to recuse himself from dealing with H's costs, stating that 'The reality is that in terms of professional and social conduct, [H] is in the same position as if she were a colleague at this court, Liverpool. I am concerned that… involving such a close colleague, there is a realistic possibility that "a fair-minded and informed observer, having considered the facts, would conclude there was a real possibility of bias."'

On appeal by the respondents, the High Court noted that – in referring to the fair-minded and informed observer - the judge had purported to apply the test for bias recognised in Porter v Magill [2001] UKHL 67. However, Waksman J concluded that the judge had reached the wrong conclusion, and that furthermore the matter is not one of judicial discretion – 'either there should be recusal based on an application of the fair-minded observer test, or there should not'.

Waksman J reminded himself that – per Watts v Watts [2015] EWCA Civ 1297 - the fair-minded observer must be taken to know the high professional ethical standards in play when a judge sits. Accordingly, such an observer would not expect a deputy judge to favour one of the counsel in the case in front of him, just because they are in the same chambers, even if he was leading that counsel in another case.

Further, he noted that the question of recusal is highly fact-sensitive and is a question of fact and degree, going on to cite the Court of Appeal's useful guidance in Locabail v Bayfield Properties [2000] QB 451 for illustrative purposes:

'Everything will depend on the facts… a real danger of bias might be well-thought to exist if there were personal friendship or animosity between the judge and any member of the public involved in the case, or the judge was closely associated with a member involved in the case, particularly if their credibility was in issue.'

Waksman J concluded that the judge in the present case was oversensitive about his position, acting out of an excess of caution, but that 'judicial discomfort' was not sufficient to trigger recusal.

The case is a useful reminder that in considering whether to recuse themselves, the threshold is high, judges and tribunal members should not recuse themselves where it is not clearly necessary, and must ask whether the circumstances would lead a fair-minded and informed observer to conclude there was a real possibility that the tribunal was biased.

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