It’s of elementary significance that judicial selections needs to be made free from bias or partiality – it has lengthy been recognised that justice should not solely be carried out however should even be seen to be carried out (R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256). A choose should, subsequently, recuse themselves in circumstances of precise or obvious bias.

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Cases of precise bias are uncommon, and it’s extra frequent for events to make recusal functions primarily based on obvious bias as illustrated by Ameyaw v McGoldrick & Others [2020] EWHC 1787 (QB). On this latest case, the claimant alleged that obvious bias arose due to the choose’s skilled relationship with the defendants’ counsel and the way in which during which the choose handled a earlier listening to in respect of which the choose was already topic to a grievance by the claimant’s mom. This word is barely involved with the previous challenge.

Authorized rules

Lord Phillips MR defined the take a look at to be utilized when contemplating recusal functions as follows: ‘The court docket should first confirm all of the circumstances which have a bearing on the suggestion that the choose was biased. It should then ask whether or not these circumstances would lead a fair-minded and knowledgeable observer to conclude that there was an actual chance, or an actual hazard, the 2 being the identical, that the tribunal was biased.’ (In Re Medicaments and Associated Courses of Items (No.2) [2001] 1 WLR 700 and subsequent endorsement in Porter v Magill [2002] 2 AC 357).

In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, the court docket held that every case of alleged bias will depend upon the circumstances of the actual case however {that a} recusal software couldn’t, inter alia, be primarily based on the choose’s earlier receipt of directions to behave for or towards any occasion, solicitor or advocate engaged in a case earlier than him; or membership of the identical inn, circuit, native legislation society or chambers. Additionally, in Taylor v Lawrence [2003] QB 528, the court docket defined that the knowledgeable observer might be anticipated to concentrate on the authorized traditions and tradition of this jurisdiction which included that barristers from the identical chambers might seem earlier than judges who have been former members of their chambers or on reverse sides in the identical case. This shut relationship, the court docket noticed, ‘has not prejudiced however enhanced the administration of justice’.

Events’ submissions

The claimant’s principal rivalry was that the choose, Steyn J, was beforehand a QC on the identical chambers as counsel for the defendants. Throughout her time there she was counsel’s pupil supervisor, which meant that ‘there was an in depth relationship’ between the choose and counsel which gave rise to obvious bias. Counting on Locabail, the defendants argued that it was well-established that the truth that a choose previously shared (or at present shares) chambers with a barrister earlier than them won’t create an look of bias.


Steyn J rejected the claimant’s arguments and refused the recusal software. In doing so, she held that the very fact a choose had been a member of the identical chambers as counsel for a celebration ‘fell squarely inside the examples given by the court docket in Locabail of circumstances which don’t, at any fee ordinarily, give rise to any soundly primarily based objection’. Steyn J additionally relied on Taylor v Lawrence, which made clear that it was not solely commonplace for counsel to seem earlier than judges who have been previously members of their chambers however that such skilled contacts between the bar and the judiciary don’t give rise to an actual chance of bias.

The choose additionally distinguished Lord Steyn’s feedback in Lawal v Northern Spirit Ltd [2003] UKHL 35 that the knowledgeable observer ‘is probably not wholly uncritical of this tradition’ and that ‘requirements within the authorized occupation might change over time’. Steyn J famous that Lawal was involved with the place the place a fee-paid choose who had chaired a tribunal on which a lay member had sat, subsequently appeared as a barrister earlier than that lay member. The Lords didn’t deal with the difficulty of contacts between members of the bar and people sitting as salaried judges with safe tenure.

Additional, the Courtroom of Attraction in Watts v Watts [2015] EWCA Civ 1297 held that it was untenable to contend that there was an look of bias in circumstances the place one of many events is represented by a barrister who was as soon as the fee-paid choose’s pupil supervisor or the place the fee-paid choose and the barrister representing one of many events have been members of the identical chambers, and the barrister was the extra senior.

Following this reasoning Steyn J concluded that: ‘It’s all the extra untenable to recommend there may be an look of bias on this case the place (a) I’m a full-time choose, (b) I’m now not a member of the chambers of which Mr Paines is a member; and (c) I’m extra senior than Mr Paines and I used to be his pupil supervisor, not vice versa.’

The choice in Ameyaw is a helpful reminder of the overall rules in regards to the challenge of bias the place the presiding choose has beforehand had an expert relationship with counsel for one of many events or the place he has been (or continues to be) a member of the identical chambers as counsel.

As earlier authorities have persistently maintained, the fair-minded and knowledgeable observer might be anticipated to concentrate on our authorized tradition and traditions, together with the shut working relationship between the bar and the judiciary which has, as Woolf CJ noticed in Taylor v Lawrence ‘enhanced the administration of justice’. Though it won’t be unattainable for an software to succeed, the authorities ship out a transparent message {that a} occasion looking for a choose to recuse himself should tread rigorously and make sure that its software is supported with compelling proof and argument.


Masood Ahmed is an affiliate professor on the College of Leicester and a member of the Civil Process Rule Committee