Jersey: Judicial Bias: Apparently, Appearances Can Be Deceptive

Last Updated: 11 June 2008
Article by Davida Blackmore

The relevant principles relating to the appearance of apparent bias on behalf of a trial judge are well settled in English law, and were most recently applied by the Jersey Courts in the matrimonial case of O'Brien v. Marett & Ors [2007] JRC 236 in which the Third Party sought to have the presiding judge, the Bailiff, recuse himself in these proceedings.

In a judgment dated 1st June 2007 (O'Brien v. Marett & Ors [2007] JRC 109) relating to the costs of a preliminary issue which had been due to be tried on 29th May 2007, the Learned Bailiff made a number of adverse and, in the eyes of the Third Party, highly critical and unjustified findings, as to the Third Party's conduct in relation to that hearing. The Third Party contended that the evidence which he was now placing before the court contradicted these findings, and that had this information been available to the court at the time, it would never have come to the conclusions it did.

The Petitioner opposed the application and contended that the court was justified in making the findings that it did which were expressed in appropriate judicial language. Further, the court had formed a judgment based on the materials before it at the time which it was entitled to do. The crux of the Third Party's argument was that, with such adverse findings against him, and with proceedings still to come, he could not possibly be afforded a fair trial before the present court.

There are various Jersey cases where the test for apparent bias have been set out. The test was expressed shortly in the case of In Re Esteem Settlement [2001] JLR 169 which cited the observations of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union [1999] (4) S.A. 147. In that case the court said that an objective test was appropriate, and that:

"the question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel".

In the House of Lords case of Porter v. Magill [2002] 1 All ER 465, it was held that:

"In determining whether there had been apparent bias on the part of a tribunal, the court should no longer simply ask itself whether, having regard to all the relevant circumstances, there was a real danger of bias. Rather, the test was whether the relevant circumstances, as ascertained by the court, would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal had been biased".

In deciding whether he should recuse himself, the Bailiff applied the test derived from the above authorities, namely whether all the circumstances, which have a bearing on the case, would lead a fair-minded and informed observer to conclude there was a real possibility of bias as a result of his failure to withdraw.

Disqualification of a Judge

The English Court of Appeal's view in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65, was that 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. On the issue of disqualification: "& an appellate court is well able to assume the vantage point of a fair-minded and informed observer with knowledge of the relevant circumstances".

Although Porter v. Magill moved away from the "real possibility" test, it is important that the informed observer needs to have knowledge of the "relevant circumstances" which in this case were extremely important. The court found that although it had been critical of the conduct of the Third Party, that these observations had to be viewed in context, namely that an application was being made by the Petitioner for indemnity costs following a concession at the eleventh hour by the Respondent and Third Party that they would not oppose the granting of the relief sought at the hearing of the preliminary issue. The award of indemnity costs was made following the finding that they had abused the process of the court.

The court was clear that it would be necessary, during the course of proceedings that "robust observations on and even criticism of the conduct of parties" would inevitably be made from time to time and importantly that:"It would be very undesirable & if judges were to feel inhibited from making any necessary findings, or uttering critical observations which might help the parties to compromise their differences, by fear that they might subsequently be challenged for apparent bias & Of course any such observations should be expressed judiciously and in appropriate judicial language."

The Bailiff thus declined to recuse himself. The judgment sends out the message that the court should not be constrained from making appropriate and justified observations regarding a party's conduct in proceedings where their approach to litigation has been found wanting and an affront to the court process. It is clearly important that judges presiding over acrimonious proceedings can make it clear that bad behaviour will not be tolerated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Davida Blackmore
In association with
Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.