Taylor v Williamsons (A Firm)

A draft judgment circulated before formal hand-down may be recalled and reconsidered before the order is perfected, including on the substance and in light of further submissions. The fact that the judge has expressed conclusions, even adverse conclusions, does not itself establish apparent bias.

The test is whether, having regard to all the circumstances and the judge’s explanation, a fair-minded and informed observer would conclude that there was a real possibility of bias. A genuine mistake in believing that closing submissions had been heard does not require recusal where the judge acknowledges the mistake, invites the submissions and is willing to reconsider the case fairly.

Mr Taylor appealed from an order of His Honour Judge McGonigal refusing to recuse himself or order a retrial in professional-negligence proceedings against Williamsons (A Firm).

After hearing evidence on a preliminary issue, the judge circulated a detailed draft judgment dismissing the claim before receiving the parties’ closing submissions. He later accepted that he had mistakenly believed that oral submissions had been heard, recalled the draft judgment and directed the parties to serve closing submissions. The central issue was whether the circumstances created a real possibility of apparent bias requiring the judge to stand down.

1. Appeal dismissed. The order refusing recusal and a retrial was upheld, with costs.
2. The applicable test for apparent bias was whether all the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased. The court adopted the approach stated in In re Medicaments and Related Classes of Goods (No. 2) and approved in Porter v Magill.
3. A judgment circulated in draft before formal hand-down is not immutable. The judge retains jurisdiction to recall, vary or alter it until the order is perfected. That jurisdiction applies whether the judgment was oral, handed to the parties in draft or formally handed down. The discretion should ordinarily be exercised only exceptionally or for a strong reason, but a judgment delivered before the expiry of the judge’s own period for closing submissions presented an exceptionally strong case for reconsideration.
4. The judge’s mistake was extraordinary but genuine. He had heard the evidence and initial arguments, then acknowledged the omission, recalled the draft judgment and expressly required further submissions. An informed observer would therefore understand that the judge was willing to reconsider the substance of the decision and would not regard the initial conclusions as evidence of prejudgment.
5. The judge was consequently entitled to continue, and there was no sufficient basis for interfering with the costs order. The appeal against the order of 14 February was dismissed with costs, subject to the stated public-funding costs assessment.

• Court of Appeal (Civil Division): appeal from the order of His Honour Judge McGonigal refusing recusal and a retrial dismissed with costs.
• High Court of Justice, Queen’s Bench Division: refused recusal, refused a retrial and ordered the claimant to pay the defendants’ costs of the application.