Should Judges recuse themselves if they practise in the same chambers as a barrister in the case?

No, according to the Court of Appeal in Vanderbilt v Azumi and others [2017] EWCA Civ 2133. However, such cases are fact-sensitive and certain additional factors can make recusal appropriate. This case raises but does not resolve some vital questions about whether or not lawyers with professional connections with Judges are under a duty to disclose that fact to their opponents. This issue is a broad one and should concern practitioners in both commercial and public law, plus, potentially, their criminal colleagues.

Background

I’ve written before about the legal test for allegations of bias against Judges, and noted then that such allegations are easily made, but often hard to prove.

Asking a Judge or equivalent decision-maker to recuse themselves (ie. to step down from hearing a case, in the interests of fairness) is one of the more difficult requests that lawyers or their clients sometimes have to make (speaking from my own experience). It’s not the sort of application to be taken lightly due to the obvious feather-ruffling that can follow if the application is refused.

Vanderbilt arose from a trademark dispute between a pet food vendor and a Japanese restaurant chain over the use of the name ‘Zuma‘.

The High Court application

During proceedings in the Intellectual Property Enterprise Court (‘IPEC’), Ms Vanderbilt, who did not have legal representation and was against both a silk and a junior instructed by solicitors, asked Recorder Campbell QC to recuse himself from deciding her summary judgment application on the grounds that he was a practising barrister in the same chambers as the lead barrister representing the respondents’ Japanese restaurant chain. The Judge fully disclosed this connection at the outset of the hearing and Ms Vanderbilt had already discovered it prior to the hearing.

Recusal on grounds of bias

Ms Vanderbilt argued that there was a real possibility of bias due to the close business relationship between the Judge and the barrister. A further complicating factor was that Ms Vanderbilt had raised allegations of serious misconduct against the barrister, amongst others. Those allegations had been dismissed by a different Judge and were based on misunderstandings of court procedure. Recorder Campbell QC disagreed with her application and concluded that he did not have to recuse himself.

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In doing so he applied the well-established test in Porter v Magill [2001] UKHL 67, namely:

• Ascertain all the relevant circumstances; and,
• in light of the facts, ask whether a fair-minded and informed observer to conclude that there was a real possibility of bias.

This is supplemented by the rider in Watts v Watts [2015] EWCA Civ 1297: that the fair minded and informed observer “would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges” and be aware of the stringent ethical standards they must adhere to.

Court of Appeal decision

Ms Vanderbilt appealed to the Court of Appeal. In the process, she made a further application to Lord Justice Floyd to recuse himself on the basis that he had refused her permission to appeal against the outcome of her trial (which she had partly won and partly lost).

Lord Justice Floyd declined to recuse himself, explaining that:

29. …The mere fact that a judge has decided applications or issues in the past adversely to a litigant is not generally a reason for that judge to recuse himself at further hearings… The fair-minded and informed observer does not assume that because a judge has taken an adverse view of a previous application or applications, that he or she will have pre-judged, or will not deal fairly with, all future applications by the same litigant.

30. The position might well be different if in the past the judge has expressed a final, concluded view on the same issue as arises in the application.

That was not the case here.

The Court moved on to dismiss Ms Vanderbilt’s appeal, while making some overall comments of particular relevance to commercial litigation practice:

44. I would be extremely reluctant to lay down a general rule that a judge from the same chambers as the advocate should always recuse himself from a case where the advocate has been accused of some form of conduct of which the litigant complains. That would provide the easiest of routes for a litigant to disrupt the listing of cases before deputy judges in specialist areas such as intellectual property and TCC work, where deputy judges are frequently chosen from amongst the small cadre of specialists in the field… However, the issue of recusal is acutely fact sensitive, and it is not difficult to think of cases on the other side of the line where the fair-minded observer would consider that such a situation did give rise to a real possibility of bias.

Comment

While Ms Vanderbilt’s appeal was ultimately dismissed, this judgment recognises that there are some circumstances in which a Judge who shares a professional business connection with a barrister acting in a case may need to recuse themselves from hearing it.

Where, for example, the barrister is acting on a Conditional Fee Agreement, it may be not be appropriate for a Judge in the same chambers to decide the case to avoid the risk that the Judge may appear to have a financial interest in the outcome.

Recusal may be appropriate where a Judge, as part of their fact-finding exercise, is required to determine allegations of fraud or criminality that are made against legal representatives who the Judge has professional business connection to.

However, the Court did not address directly some of the more vexed issues in this area. Are legal representatives under any ethical or procedural duty to disclose past or present professional business connections with Judges to their opponent, and in particular, to a litigant-in-person?

I think so, given that the Judge at first instance expressed ‘concern‘ at the lack of disclosure (see § 21). It is arguable that legal representatives are under a procedural (if not an ethical) duty to give their opponents “sufficient notice” of any such connections, if only so that opponents can consider making applications in good time and to avoid anyone being surprised by disclosure on the day of a hearing.

That seems fair, especially given that the failure to make an application for recusal can be held against a party seeking to appeal a judgment on the grounds of bias (see § 45 of Singh v Secretary of State for the Home Department [2016] EWCA Civ 492).

A version of this article appeared first in the New Law Journal, published by Lexis Nexis. If you’d like to discuss your legal training requirements, please contact me.