Back in 2015 we published an article which asked Are allegations of judicial bias on the rise?. The answer to that question then was clearly yes – allegations in civil cases had risen dramatically following the introduction of the Jackson reforms in 2013 and the increased number of litigants in person that followed.
We anticipated a continuing rise in bias allegations but that proved to be wrong: allegations against High Court judges in civil matters settled down to a couple or so a year. Until now, that is.
Fast forward five years and introduce the Covid-19 lockdown and remote and hybrid hearings. Five High Court recusal applications in civil cases were determined between the start of lockdown in March 2020 and the end of July. Only one of the applicants was a litigant in person. Is this a blip brought on by present extreme circumstances or can we read anything more from these recent cases? We review the decisions and hazard some conclusions.
Apparent bias: types of case
Apparent bias requiring a judge to recuse themselves is present when a notional fair-minded and informed observer would conclude that their conduct or behaviour, interests or allegiances give rise to a reasonable suspicion that they are not impartial. Examples tend to fall into broad categories and the five cases since the March lockdown began illustrate three of these: procedural bias, professional relationships and personal connections.
Re C (A Child) is a cautionary tale about the dangers of technology. Judd J was hearing care proceedings. The trial proceeded remotely via Zoom for the first 12 days while the medical witnesses gave evidence. The mother then gave evidence before the judge in court in a hybrid hearing. After two days the mother developed a cough and began to wear a mask, at which point the judge agreed that she should give the rest of her evidence remotely from home. The judge rose and an associate carried her closed laptop through to her private room. Without appreciating that the Zoom session was continuing and those participating in the proceedings could hear, the judge had a short conversation with her clerk in which she said that the mother was pretending to have a cough and was trying “every trick in the book”.
Judd J refused to recuse herself and the mother appealed. The Court of Appeal noted that the judge was trying to manage a very heavy workload and was reluctant to pass the trial to another judge, given the tremendous pressure facing family judges, but were in no doubt that she should have recused herself.
In Surrey Heath Borough Council v Robb, the defendants asked Freedman J to recuse himself after he had previously decided against them at interim injunction hearings. He had also refused their application for a physical trial, ordering it to be heard remotely. The judge refused to recuse himself: the fair-minded informed observer would recognise the distinctions between trial following disclosure with oral evidence and cross-examination on the one hand and interim injunctions on the other.
There are often connections between the lawyers and the judge involved in a case, whether because the judge has been a partner in the firm of solicitors acting for one party, or in the same chambers as one of the barristers. In general these connections are part and parcel of legal practice and do not give rise to apparent bias because of the professional and ethical standards expected from lawyers. This was the conclusion in Ameyaw v McGoldrick where Steyn J had been the defendant’s barrister’s pupil supervisor for three months in 2012 (this is the only case of the five where the claimant was a litigant in person).
Adam Johnson QC, sitting as a deputy High Court judge, agreed to recuse himself in Financial Conduct Authority v Avacade Ltd. He is a partner at Herbert Smith Freehills, the firm of solicitors representing the FCA in the ongoing Business Interruption Litigation. The trial had concluded before the issue arose so there was a practical break in the proceedings and another judge could deal with hearings about final injunctions and financial relief.
HHJ Paul Matthews (sitting as a High Court judge) refused to recuse himself in Brake v Swift. In 2019 he informed the parties that he had been in the same form at school with Dr Geoffrey Guy, whose investment vehicle was the second respondent in the case, and had not seen him for more than forty years. The applicants made no objection at that point but chose to do so shortly before trial in May 2020 after the judge had already made several interim decisions in the case. This can be contrasted with the position in AWG Group v Morrison where one of AWG’s non-executive directors and potential witnesses had known the judge for more than thirty years, was his neighbour in Norfolk and had been his tennis partner in the past. The Court of Appeal held that he should have recused himself.
Possible reasons for the increase in allegations
The following factors may be leading to the recent increase in recusal applications.
- Introduction of remote and hybrid hearings: The abrupt move to remote and hybrid hearings during the pandemic has led to increased pressure on judges and litigants alike. This was a material factor in Re C (A Child) and Surrey Heath BC v Robb.
- Shortage of judges: We have been short of High Court judges for several years. This leads to stressed judges doing their best to allocate court time fairly in order to keep the show on the road. Robust case management decisions can look like bias to the parties. In 2017 Joshua Rozenberg commented that the High Court had been running below full strength for some time. In his predictions for 2019 he said judicial recruitment and retention would be the Secretary of State for Justice’s biggest challenge. The problem has not gone away.
- Increasing number of part-time judges: The shortage of High Court judges has led to an increasing number of part-time Deputy High Court judges.The Judicial Appointments Commission’s Twitter account (@becomeajudge) reveals that there are currently 35 vacancies for Deputy High Court judges (applications closed on 29 September). This can increase the perception of bias, particularly if the part-time judge is a practising barrister in the same chambers as counsel for one of the parties (as in Zuma’s Choice Pet Products Ltd & Vanderbilt v Azumi Ltd) or a partner in a solicitors’ firm (as in FCA v Avacade Ltd).
Allegations of bias are time-consuming and costly whether you are making them or on the receiving end of an application and wanting to press on with a hearing. If there are known to be potential grounds for apparent bias, such as connections between the judge and the lawyers or witnesses, and you are concerned that the opposing party could raise the issue later in the proceedings, it may be worth approaching the judge before the hearing so that the issue can be ventilated at an early stage. If the current trend continues, the best way of avoiding this problem is to settle the dispute, whether via mediation or otherwise.
Or opt to arbitrate where this can be agreed, and get to choose your tribunal – see our briefing Dispute resolution in a post coronavirus and Brexit world – should you be considering arbitration?.