Woolwich plc v Daisystar Ltd (Raja)

A judge is not disqualified from sitting merely because he previously dealt with interlocutory applications in the same litigation and expressed adverse views about defective pleadings or procedural abuse. The relevant question is whether the earlier involvement gives rise to a real danger that the judge cannot approach the later issues with an objective judicial mind. Stronger grounds may arise where the judge previously made extreme or unbalanced findings about the credibility or reliability of witnesses whose evidence must later be assessed. The circumstances must be evaluated individually, and any real doubt should be resolved in favour of recusal.

Mr Raja challenged the participation of Mummery LJ in an appeal concerning long-running litigation involving Daisystar Ltd and Woolwich plc. Before joining the Court of Appeal, Mummery LJ had dealt with several interlocutory applications as a Chancery Division judge, including applications concerning pleadings, amendments and alleged abuse of process.

The challenge relied on the principles stated in Locabail Ltd v Bayfield Properties Ltd [2000] 1 All ER 65, and on Vakauta v Kelly (1989) 167 CLR 568. The central issue was whether Mummery LJ’s earlier comments created a real danger of bias requiring recusal.

1. Application refused. Simon Brown LJ delivered the principal judgment. Otton LJ and Mummery LJ agreed.

2. The governing principle from Locabail Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 is fact-sensitive. A judge should disclose matters which could arguably give rise to a real danger of bias. An objection should be rejected if tenuous or frivolous, but any genuine doubt should be resolved in favour of recusal.

3. The circumstances identified in Locabail, drawing on Vakauta v Kelly (1989) 167 CLR 568, principally concerned prior, pronounced views about the credibility or reliability of witnesses, or extreme and unbalanced expressions capable of casting doubt on the judge’s ability to approach the later issue objectively.

4. Mummery LJ’s earlier comments concerned pleadings and alleged abuses of the court’s process. He had heard no evidence and had made no findings about the credibility or reliability of witnesses. His comments were not extreme or unbalanced. Describing pleadings as scandalous was expressly qualified as use of the term in its legal sense, and describing the case as difficult was a restrained assessment.

5. The fact that a judge previously commented adversely on a party or had dealt with an earlier stage of the same proceedings does not, without more, establish a real danger of bias. The objection was therefore unsustainable, and it was appropriate for Mummery LJ to hear the applications.

• Court of Appeal (Civil Division): The application to recuse Mummery LJ was refused. The application arose during an appeal from interlocutory and consequential orders made by Mr Justice Robert Walker, including his judgment of 14 June 1995.