Morrison & Anor v AWG Group Ltd & Anor

A judge is automatically disqualified where a fair-minded and informed observer, having considered all relevant circumstances, would conclude that there is a real possibility of bias. This is not a discretionary case-management issue. Delay, cost and listing inconvenience cannot justify proceeding where the test is met.

In a prospective trial, the court must assess the realistic risk that later evidence or issues will engage a judge’s close personal connection with a person involved in the case. Removing that person from the witness list will not necessarily remove the appearance of bias if their role and possible credibility remain materially connected with the evidence. Prudence may favour recusal before a lengthy trial begins.

The claimant companies brought a substantial fraud action arising from AWG’s acquisition of Morrison plc. The defendants were Sir Alexander Morrison and Stephen McBrierty. The proposed trial was expected to last about six months.

Shortly before trial, Evans-Lombe J disclosed a longstanding friendship with Mr Jewson, a former senior non-executive director of AWG and chairman of its audit committee. Mr Jewson had made a witness statement. AWG proposed not to call him so that the judge could remain. Evans-Lombe J refused the defendants’ recusal application and granted permission to appeal in [2005] EWHC 2786 (Ch).

The central issue was whether the judge’s friendship with Mr Jewson created a real possibility of apparent bias despite the proposal to use replacement witnesses.

1. Appeal allowed unanimously. Lord Justice Mummery, with whom Lord Justice Latham and Lord Justice Carnwath agreed, held that Evans-Lombe J ought to have recused himself. He was directed not to try the action.

2. The controlling inquiry was whether a fair-minded and informed observer, apprised of all relevant circumstances, would conclude that there was a real possibility that the tribunal was biased. The principle of judicial impartiality, at common law and under Article 6 of the European Convention for the Protection of Human Rights, creates automatic disqualification when that test is met. It does not permit a discretionary balancing exercise.

3. An appellate court must make its own assessment of the relevant circumstances. It is not confined to deciding whether the trial judge made an error in exercising a discretion or was plainly wrong.

4. The judge’s 30-year acquaintance and friendship with Mr Jewson was substantial. Mr Jewson was involved in the case because of his senior AWG roles at the material time, even if he did not give oral evidence. His potential evidence concerned reliance and causation in a large, complex fraud action, and the judge had read his witness statement.

5. The claimant’s decision not to call Mr Jewson did not cure the difficulty. Replacement evidence from fellow audit-committee members could require findings bearing on the same matters and could place the judge in an analogous position concerning credibility or reliability. The court could not confidently predict that the issue would not arise during a six-month trial.

6. Delay, cost and listing disruption were legally irrelevant once a real possibility of bias existed. The safer course was recusal before trial, rather than risking a later aborted hearing. The case was to be listed before another judge as soon as possible.

• Court of Appeal (Civil Division): allowed the defendants’ appeal and directed Evans-Lombe J to recuse himself from trying the action: [2006] EWCA Civ 6.
• High Court, Chancery Division: Evans-Lombe J dismissed the defendants’ recusal application and granted permission to appeal: [2005] EWHC 2786 (Ch).