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Judge refuses to recuse himself in a group litigation case
The defendant issued an application for the Managing Judge of
this Group Litigation case to recuse himself on the ground of
apparent bias. The test for apparent bias is that established in
the leading case of Porter v Magill [2002]: "the
fair-minded and informed observer, having considered the facts,
would conclude that there was a real possibility that the tribunal
was biased".
The defendant's main complaint was that the judge had, when
giving judgment on certain common issues, already formed a view on
matters which remained to be revisited at subsequent trials. Much
of the case turns on its particular facts, but some general
observations were made by the judge, including the following:
(1) It has previously been held that judges should not recuse
themselves too readily in long and complex cases, otherwise the
convenience of having a single judge in charge of both the
procedural and substantial parts of the case will be seriously
undermined. That point is of particular significance in group
litigation cases (where the test for apparent bias is the same as
for other cases), which are usually massive in scale and almost
certainly never heard in a single trial.
(2) The defendant had been wrong to rely on isolated passages in
the judgment: "a fair-minded and informed observer would take
account of everything contained in [the judgment], including the
overall result". In this case, the defendant had been
partially successful on a number of the common issues. Accordingly,
the judge found that apparent bias had not been proven by the
defendant.
(3) The judge further held that, even if apparent bias had been
made out, he would not have recused himself. That was because the
defendant had waited until almost two weeks after it received the
judgment before making the application. During that time, a trial
on other issues had begun and it was held that the defendant would
have had an "enormous advantage" if that trial were to be
abandoned and started again before another judge, because most of
its witnesses would have had "a full practice run" of
cross-examination.
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