Stephen Baister Writes... on Judicial Bias
As we all know, justice should not only be done but should manifestly and undoubtedly be seen to be done. That aphorism was given to us by Lord Hewart, then Lord Chief Justice, in the case of Rex v Sussex Justices [1924] 1 KB 256.
It means, amongst many other things, that cases should be heard by a judge who is impartial, untainted by bias. A judge who has a financial or other interest in the outcome of a case cannot be impartial. Indeed a judge who has an interest of any kind in the outcome of a case is automatically disqualified from hearing it, as is a judge who is biased in favour of or against a particular party. This kind of bias is often called “actual bias.” More difficult to identify are cases of “apparent bias.”
These arise when the judge’s conduct or behaviour gives rise to a suspicion that he or she is not impartial. But suspicion alone is not enough to justify disqualifying a judge from hearing a matter: the suspicion must be objectively justified by reference to the concept of the “fair-minded and informed observer” (see Porter v Magill [2002] 2 AC 357 per Lord Hope of Craighead). If such an observer would consider that there was a real possibility of bias, the judge must recuse himself.
The difficulties are all too obvious. Be that as it may, claims of judicial bias and applications to recuse seem to be on the increase. The phenomenon was noted by Ward LJ in El Farargy v El Farargy & Ors [2007] EWCA Civ 1149:
“It is an embarrassment to our administration of justice that recusal applications, once almost unheard of, are now so frequently coming to this Court in ways that do none of us any good,” he said, although, he conceded, “it is, however, right that they should.”
Some applications are real; others seem far fetched; many are opportunistic. The view you take is likely to depend on who you are and, perhaps, your own biases.
A common complaint, usually made by litigants in person, is that the judge must be biased because he or she has consistently made decisions against the complaining litigant. It is usually misconceived. The Post Office tried it in the Horizon IT litigation, asking Fraser J to disqualify himself after he had made a number of orders that were not in the Post Office’s favour. He refused (Alan Bates v Post Office Limited [2019] EWHC 871 (QB)). The Court of Appeal stood by him, finding that the application “never had any substance and was rightly rejected by the judge.”
In Zuma’s Choice Pet Products Ltd v Azumi Ltd [2017] EWCA Civ 2133 Floyd LJ reminded us that: “The fair-minded and informed observer does not assume that because a judge had taken an adverse view of a previous application or applications, he or she will have pre-judged or will not deal fairly with, all future applications by the same litigant”.
There are, as one might expect, cases on the issue that go both ways. Most do not succeed, as was the case in Ablyazov v JSC BTA Bank [2012] EWCA Civ 1551 in which the Court of Appeal rejected an argument of apparent bias by reason of the trial judge’s having previously heard a committal application and sentenced one of the parties to a term of imprisonment. But in Re Q [2014] EWCA Civ 91 the Court of Appeal held that there was a danger of bias evidenced by comments made by the judge, emphasising there was a difference between “robust active case management” and “premature adjudication;” more recently in Dorman & Ors v Clinton Devon Farms Partnership [2019] EWHC 2988 (QB) Saini J allowed an appeal against a circuit judge’s refusal to recuse himself on the grounds of apparent bias in a case where vigorous case management had gone too far.
Judges are encouraged to take a robust approach to recusal applications and generally do.
A history of adverse findings against a party is unlikely to be found to be indicative of bias if the findings are properly made. But, as in so many aspects of the law, there are few absolute rules. As Lord Bingham said in Locabail (UK) Ltd v Bayfield [2000] QB 451, “We repeat: every application must be decided on the facts and circumstances of the individual case.”