Ansar v Lloyds TSB Bank Plc & Ors

A complaint or allegation of bias against a judge or tribunal chair does not automatically require recusal. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.

The decision-maker must examine the substance of the allegations. Frivolous, fanciful or unsubstantiated criticisms, including complaints about case management and prior adverse rulings, do not ordinarily disqualify the judge. Judges must also resist attempts by litigants to secure a preferred tribunal through criticism. Where there is a real ground for doubt, however, it should be resolved in favour of recusal.

The claimant had brought a first set of employment proceedings before an Employment Tribunal chaired by Mr Kolanko. He challenged the outcome and alleged bias and misconduct by the chairman.

A second set of proceedings against the respondents had been stayed pending the first proceedings. When applications in the second proceedings were listed for a Directions Hearing before Mr Kolanko, the claimant sought his recusal. The Regional Chairman refused the request, considering Mr Kolanko well placed to deal with issues arising from the earlier proceedings, while reserving whether he should conduct any later full hearing.

Mr Kolanko also refused to recuse himself. Burton J, sitting in the Employment Appeal Tribunal, upheld that decision. The central issue before the Court of Appeal was whether the outstanding allegations and complaint required recusal from the Directions Hearing.

1. Appeal dismissed unanimously. Lord Justice Waller, with whom Laws and Leveson LJJ agreed, held that neither the Regional Chairman nor Mr Kolanko was required to arrange recusal from the Directions Hearing.

2. The applicable test was that stated in Porter v Magill [2002] 2 AC 357: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. A judicial officer must consider a properly made objection, but must neither yield to a tenuous objection nor ignore one of substance.

3. The making of a complaint against a judge cannot itself create an automatic rule of recusal. The nature and substance of the allegations must be assessed. Otherwise, litigants could select the judge who hears their case by criticising judges whom they did not want to sit. Prior adverse findings, case-management decisions, or criticism of the conduct of earlier proceedings require something more before they establish apparent bias.

4. The allegations here concerned a small number of asserted incidents during a lengthy earlier hearing. They amounted to criticism of directions, hearing management, cross-examination and an isolated alleged gesture to counsel. They were without substance and did not give a fair-minded observer a real basis for thinking that Mr Kolanko could not decide the Directions Hearing fairly.

5. The limited nature of the hearing mattered. The Regional Chairman was entitled to permit Mr Kolanko to deal with the Directions Hearing and to leave open the separate question whether he should sit on any future full hearing. Mr Kolanko had considered the fuller allegations contained in the Notice of Appeal before reaching his own decision. His decision was unimpeachable.

• Court of Appeal (Civil Division): dismissed the claimant's appeal in [2006] EWCA Civ 1462.
• Employment Appeal Tribunal: Burton J upheld the refusal of the Regional Chairman and Employment Tribunal chairman to require recusal from the Directions Hearing.
• Employment Tribunal: the Regional Chairman refused the claimant's request that Mr Kolanko not conduct the Directions Hearing; Mr Kolanko subsequently declined to recuse himself.