Judicial recusal

Berg v IML London Ltd ([2002] 4 All ER 87 QBD)

Where a judge is asked to recuse himself on the grounds that he had seen ‘without prejudice’ correspondence, the test is whether a fair-minded and informed observer would conclude that there was a real possibility that there could not, or would not, be a fair trial. Such a case is not one of partiality or bias because there was no suggestion that the judge had a relationship with a party or an interest that gave rise to the alleged partiality. If, therefore, a judge was of the view that he would sensibly disregard material that was irrelevant or prejudicial, and that he was able to give judgment in accordance with the facts and evidence properly before him, there was not the same reason as in cases of lack of independence or partiality for an appeal court to scrutinise what the judge had said in relation to his ability to dispense justice, and less reason to scrutinise his decision.