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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