Kangaroo Court!

I have been asked by one of my Direct Public Access clients whether she could ask for her case to be heard by another Judge as she was convinced the Judge was biased and prejudiced against her.

This was something that I had not looked at for awhile. My last foray into bias involved allegations of Masonic conspiracies in a local authority who were in cahoots with the local judiciary. You can imagine how far that took me in front the Employment Appeal Tribunal! The approach here was slightly different as this was not an appeal but was simply a request for someone else to hear the case.

The most recent case of recusal (withdrawal) in the Tribunal was Ansar v Lloyds TSB Bank plc [2006] EWCA Civ 1462 which involved a former member of my Chambers who now sits full time in the Employment Tribunal. The complaint made by Mr Ansar was that the Judge was biased. There was a litany of complaints involving decisions in favour of the Respondent and against the Claimant in relation to a hearing that lasted 5 weeks. The Claimant had then launched another set of proceedings which came in front of the same Judge for a PHR. The Claimant having appealed on the grounds of bias attempted to have the Judge recused.

The following quote was cited with approval by the Court of Appeal at paragraph 17:

“It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course, because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant - whether it be a represented litigant or a litigant in person - criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases, simply by criticising all the judges they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised - whether that criticism was justified or not.” (Chadwick LJ in Dobbs v Theodos Bank NB [2005] EWCA Civ 468)

This tells us that recusal cannot be triggered simply because a complaint has been made there has to be more. The Court of Appeal considered that for any application for recusal to be successful the Judge or the Regional Judge will have to be persuaded that his or her continued involvement in the case would lead a fair-minded and informed observer, having considered the facts, to conclude that there was a real possibility that the Judge was biased.

So the Judge should be considering the nature of the complaint, whether this might lead the bystander to presume that his ability to make a fair decision would be effected by the complaint and of course whether the complaint was in fact true.

All in all then the test is the familiar bias test found in Porter v. Magill [2002] 2 AC 359, paragraph 103, per Lord Hope of Craighead. What is different is that it is the Judge who is initially applying the bias test to himself rather than a third party. The reality is that most applications will eventually find their way to a third party, the Regional Judge, who then makes a decision applying the principles set out above.

In short it is never going to be easy to persuade a Judge to recuse himself from having any continued involvement in your case!

Dobbs v Theodos Bank NB [2005] EWCA Civ 468:

http://www.bailii.org/ew/cases/EWCA/Civ/2006/1462.html

Ansar v Lloyds TSB Bank plc [2006] EWCA Civ 1462:

http://www.bailii.org/ew/cases/EWCA/Civ/2005/468.html

Porter v. Magill [2002] 2 AC 359:

http://www.bailii.org/uk/cases/UKHL/2001/67.html

Peter D