AWG Group Ltd & Anor v Morrison & Anor

Recusal is required where the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. The assessment must consider all circumstances bearing on the allegation. A judge may remain where a potentially familiar witness is not called and replacement witnesses can fairly provide the relevant evidence. The court must also consider whether unexpected developments at trial might materially alter the position. That risk must be balanced against the disruption, delay and cost caused by replacing the judge. The possibility of a changed picture is insufficient if the risk is too small to justify recusal.

The defendants applied shortly before trial for the judge to recuse himself. The application followed disclosure that a proposed claimant witness, Mr Jewson, was a long-standing family acquaintance and friend of the judge. The claimants decided not to call Mr Jewson and proposed substitute witnesses. The defendants argued that the judge’s relationship with Mr Jewson, and Mr Jewson’s former position as a non-executive director and audit committee chairman, created a risk of apparent bias and unfairly altered the trial.

The central issue was whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge would be biased.

1. Application dismissed. The judge applied the test that all circumstances bearing on the suggestion of bias must be identified, followed by the question whether a fair-minded and informed observer would conclude that there was a real possibility of bias.
2. The proposed substitute witnesses could give the relevant evidence that Mr Jewson would have given. The defendants would remain able to compare their evidence with Mr Jewson’s witness statement and criticise any divergence. The judge’s familiarity with Mr Jewson therefore did not create an unfair disadvantage or a sufficient appearance of bias.
3. Mr Jewson’s non-executive role and membership of the audit committee did not establish a sufficient risk. He was not an executive responsible for day-to-day trading decisions, and there was no evidence that he had participated in the relevant post-acquisition decisions. The issues concerned causation and loss, rather than the merits of particular decisions in which he had been involved.
4. In a complex and lengthy trial, unexpected evidence might later place an individual’s role in a different light. That possibility had to be balanced against the disruption to the administration of justice, delay and additional costs that recusal would cause. On the facts, the risk of such a changed picture was too small to justify recusal.