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Recusal applications: procedure and practice reviewed - Oberon Kwok

This article was originally published on Thomson Reuters Practical Law.

In Miley v Friends Life Ltd, the High Court gave some valuable guidance on the mechanics and considerations behind the making of a recusal application.

Background

This was a claim on an income protection policy issued by the defendant to the claimant. The latter alleged that he was unable to work due to chronic fatigue syndrome. The defendant contended that the claimant was faking or exaggerating his illness and had breached the terms of the policy when he understated his income level when taking out the policy.

The point about the understated income had, tactically, not been raised by the defendant until cross-examination. An issue therefore arose as to whether an innocent misrepresentation constituted a breach of the policy under its terms. Various written submissionswere put to the Turner J, who then stated his preference for a further oral hearing. At the defendant’s own request, on 11 April 2017 the judge identified (by email) the issues on which he would wish to hear oral argument. Hypothetically, the judge asked for submissions in the event that he found that the claimant’s misrepresentation was neither fraudulent nor reckless. He also asked what the effect of a careless or innocent misrepresentation might be. Lastly, he asked to be reminded of where the defendant had pleaded misrepresentation in the defence and counterclaim.

On 22 June 2017, a few days before the oral hearing, the defendant, by way of “further closing submissions”, invited Turner J to recuse himself due to apparent bias.

Procedure

From a procedural perspective, Turner J’s starting point was to apply “the legitimate demands of firm management with the aim of applying the overriding objective.” Thus, a party’s legal representatives are under the duty of furthering the overriding objective pursuant to CPR 1.3Practice Direction 23A paragraph 2.7 provides that:

“Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it”.

Recusal applications should be treated like any other application in this respect, namely, that they must comply with the formalities of CPR 23. In particular, parties should not be under the illusion that, as may have been in past cases, recusal applications can be made on an informal basis. Rather, an application notice should generally be used. The laxness in historic cases that may have prevailed for requests for recusal must give way to the rigours of CPR 23.

On the facts, Turner J exercised his discretion to waive these procedural shortcomings, including the lack of an application notice, on the basis that any delay would simply occasion further waste of time and money and outweigh the benefits of holding the defendant to procedural discipline.

Nevertheless, Turner J warned that a court could simply dismiss a recusal application as a result of “inordinate and inexcusable delay” without considering the merits. It would be wrong to assume that a recusal application was immune to the procedural rigours of the CPR.

Merits

It was not in dispute that the basic test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a “real possibility” that the judge was biased (Porter v Magill).

The defendant’s main grounds of apparent bias were as follows:

  • The judge had pursued a line of inquiry which was to the benefit of the claimant alone.
  • Apparent pre-determination that the claimant’s misrepresentations were innocent and therefore a failure to consider the evidence fairly.
  • Raising a pleading point which the claimant himself had not raised.

Turner J held that an application for recusal should not prevent a judge from treating the application with robustness and “proportionate scepticism, where this is necessary”, just like any other application. Any other approach would prejudice the responding party.

On the defendant’s first ground, Turner J followed the approach set out by Lord Neuberger in a paper delivered to the Singapore Panel on Judicial Ethics and Dilemmas on the Bench on 19 August 2016 titled, The Role of the Judge: Umpire in a contest, Seeker of the Truth or Something in Between? Lord Neuberger had opined that if a judge thinks a legal argument has not been raised by the parties, he should normally raise it himself, shortly and neutrally. This was what Turner J held he had done in his email when setting out the areas in which he desired to hear oral submissions, nothing more. On the second ground, the judge’s questions were merely hypothetical, and in any event had been raised after all of the evidence of fact had been heard. There was therefore no “pre”-determination. On the third ground, Turner J stated that he had never resiled from the notion that he intended to decide the case on the merits, not on the pleadings. The point about the pleading simply went towards the judge’s interest in ensuring he had correctly identified the way the issue was raised in the defence. He was simply anxious not to miss anything.

Ultimately, it had been open to the defendant’s representatives to first seek clarification from the judge as to the reason behind his questions in order to satisfy them that there was no illegitimate purpose behind them. Although they should have, they had not done so.

Conclusion

This judgment contains some valuable guidance on the mechanics and judicial approach that courts should take to recusal applications. In particular, it reminds parties that, when seeking a recusal, the procedural stringencies of the CPR do not apply with any less force. This is especially true of CPR 23. Parties must act without delay.

Dispute resolution lawyers will also be aware that numerous judges today are fond of making informal remarks or asking questions in preliminary or interlocutory hearings about the possible merits or demerits of a party’s case. This is often done in the hope that parties see sense and seriously (re)consider resolving their dispute out of court. It is unlikely that such remarks would provide sufficient grounds for a recusal application.

Should you have any further queries, please do not hesitate to contact his clerks Luke Irons or James Wackett by email or telephone 0207 440 6900.

20/07/2017
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