Howell & Ors v Lees Millais & Ors

Apparent bias is determined by assessing all relevant circumstances from the standpoint of a fair-minded and informed observer. The question is whether there is a real possibility of bias; the reviewing court must make its own assessment.

Recent personal or business dealings, personal animosity towards a firm or its partners, and unusual personal consequences for a party may be relevant. A judge should not cross-examine witnesses or give evidence when deciding a recusal application. Where genuine doubt exists, particularly before the hearing begins, the precautionary approach favours recusal.

The claimants were trustees applying for directions in a contested Beddoe application. One claimant was a partner in Addleshaw Goddard. Shortly before the application was assigned to Peter Smith J, discussions between the judge and the firm about a possible future association ended unsuccessfully. The judge’s emails expressed strong disappointment and criticism of the firm.

The claimants sought the judge’s recusal. The application was refused, both by letter and after an evidential hearing. The defendants were neutral on the appeal. The central issue was whether the circumstances, including the judge’s conduct during the recusal hearing and the potential personal costs consequences for the claimant trustee, created a real possibility of apparent bias.

1. Disposition. The Court of Appeal unanimously allowed the appeal. Peter Smith J should have recused himself from hearing the Beddoe application.
2. Applicable test. The court applied the established approach in Porter v Magill [2002] 2 AC 357, based on Re Medicaments and Related Class of Goods (No 2) [2001] 1 WLR 700. The court must identify all circumstances bearing on the allegation of bias and ask whether a fair-minded and informed observer would conclude that there was a real possibility, or real danger, of bias. The disqualification is automatic rather than a discretionary case-management decision. The reviewing court must make its own assessment.
3. Judge’s explanation and conduct. A judge’s explanation may form part of the circumstances, but the judge cannot determine the risk by asserting that he or she would act impartially. The approach in Locabail UK Limited v Bayfield Properties Limited [2000] QB 451 requires the reviewing court to assess the risk independently. At most, the judge should make a short statement on the record. Cross-examining the supporting witness, giving evidence about disputed facts, challenging counsel’s submissions, and impugning the good faith of the application were inappropriate and reinforced the appearance of bias.
4. Relevant circumstances. The passage of time is relevant. The events here were very recent. Personal animosity towards a firm of solicitors or its partners can create a real possibility of bias, and the categories of circumstances giving rise to such a danger are not closed. The fact that the judge might sit in other cases involving the firm did not dispose of this particular objection.
5. Application. The underlying application was unusually contentious. The claimant trustee’s conduct was impugned and the defendants intended to seek personal costs orders, although the usual position in a Beddoe application is that costs come from the trust fund. Those circumstances connected the judge’s recent dealings with the firm to a party who faced personal consequences. Taken with the emails and the judge’s conduct at the hearing, they required the conclusion that a fair-minded and informed observer would see a real possibility of bias against the firm and its partners.

1. Chancery Division: Peter Smith J refused the application for recusal on 29 June 2007 and gave reasons in a judgment handed down on the following Monday.
2. Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed. The court held that the judge should have recused himself. Reasons were given on 4 July 2007 under [2007] EWCA Civ 720.