Drury v British Broadcasting Corporation & Anor

A judge’s earlier criticism of a party does not, without more, establish apparent bias in later proceedings involving that party. The recusal question must be assessed in its factual context from the perspective of an impartial observer informed of all relevant facts. A risk of bias may nevertheless arise where the earlier criticism was particularly trenchant. Where there is room for doubt, the court should resolve it in favour of recusal. If a substitute judge is available and substitution can occur without increased cost or inconvenience, arranging it is a proper course to avoid dissatisfaction or later complaint.

At the outset of an appeal concerning Eady J’s ruling on the joinder of Douglas Carnegie as a second defendant in Mr Drury’s libel action against the BBC, Mr Drury sought the recusal of Wilson LJ. The application arose from Wilson LJ’s earlier refusal of permission to appeal in proceedings in which Mr Drury had acted as a Mackenzie friend. Mr Drury considered that the earlier judgment had criticised his professional conduct and feared that the present appeal would not be dealt with fairly.

The Court of Appeal considered whether the prior judicial criticism created a sufficient appearance of bias, and whether Wilson LJ should nevertheless be replaced as a precaution.

1. The application was resolved by Wilson LJ’s recusal and the substitution of another Lord Justice. The court stated that the substantive appeal could proceed later that day.

2. Applying the guidance in Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451, the mere fact that a judge has previously criticised a party does not establish a sufficient basis for recusal. Each application depends on its factual context. In an appropriate case, trenchant criticism may create a perception of a risk of bias in later proceedings.

3. The objective assessment asks whether an impartial observer, knowing all the relevant facts, would think that an adverse view formed previously could cause the judge to approach the later case with bias. Here, the appeal concerned joinder. Its determination did not depend on Mr Drury’s credibility or on the merits of the underlying libel action. The court therefore considered that no such observer would infer a risk of bias.

4. Nevertheless, the court stated that where there is room for doubt about the proper course, the doubt should be resolved in favour of recusal. Where another judge can be found and substitution can occur immediately without increased cost or inconvenience, the court may properly arrange it to avoid dissatisfaction or future complaint.

• Court of Appeal (Civil Division): On an appeal from the Queen’s Bench Division before Mr Justice Eady, the court determined the recusal application at the outset. Wilson LJ recused himself and the matter was adjourned to proceed with a substitute Lord Justice.
• High Court of Justice, Queen’s Bench Division: Mr Justice Eady had ruled on the joinder of Douglas Carnegie as second defendant in the libel action. No citation for that ruling is stated in the judgment.