Recusal

AWG Group Ltd v Morrison [2006] All ER (D) 139 (Jan)

During the judges’ pre-reading of the case, he noticed that the claimant planned to call a witness he knew well. When he alerted the parties to his predicament, the claimant indicated that, rather than risk the judge s withdrawal and the consequent delay, it would not call the witness to give evidence, but call two other directors of the company instead. The defendant demurred, arguing that if the witness did not appear it would be denied the opportunity to cross-examine him; it would be impossible for it to criticise the failure to call him; any criticism of the other directors would indirectly be a criticism of the witness; and it was wrong to deprive it of the opportunity to cross-examine a witness for a reason extraneous to the subject matter of the trial – ie to save the embarrassment of the judge. The judge applied the test of whether all the circumstances which had a bearing on the case would lead a fair-minded and informed observer to conclude that there was a real possibility of bias as a result of his failure to withdraw. He concluded that his continued role as judge would not fail the bias test. He could see no reason why the proposed new witnesses could not give the evidence the witness would have given. The judge considered the risk of the effect of the witness withdrawing because of the judge’s connection with him to be outweighed by the disruption caused by having to find a new judge. The Court of Appeal disagreed and ordered the judge to recuse himself. The Court of Appeal likened its vantage point to that of a fair-minded and informed observer with knowledge of the relevant circumstances and decided that there was a real possibility of bias. The disqualification of a judge for apparent bias was not a discretionary case management decision reached by weighing various relevant factors in the balance. There was either a real possibility of bias – in which case the judge should be disqualified – or there was not. Deficiency and convenience are not the determinative legal values: the paramount concern of the legal system is to administer justice, which must be, and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having.