Baker v Quantum Clothing Group & Ors

Apparent bias arises where a fair-minded and informed observer, having considered the relevant facts, would conclude that there is a real possibility that the judge was biased. The observer is neither complacent nor unduly sensitive or suspicious.

A tenuous, indirect connection between a judge and a party’s solicitors will not ordinarily require recusal. Nor does a judge’s experience of the medical condition involved in litigation establish apparent bias without more. A party seeking recusal must raise the objection as soon as practicable. Delay may show that the alleged grounds were not regarded as serious and may render the application too late.

The respondents sought the recusal of Sedley LJ after the hearing of test-case appeals concerning noise-induced deafness in the textile industry. Sedley LJ had disclosed at the outset that he was honorary president of the British Tinnitus Association. The respondents initially raised no objection, but later relied on his own mild tinnitus and alleged links between the association, the appellant’s solicitors and an expert witness.

Sedley LJ declined to recuse himself and referred the objection to Smith LJ and Jacob LJ. The central questions were whether the alleged connections or personal experience created a real possibility of bias and whether the applications had been made promptly enough.

1. The applications for recusal were refused. Applying the fair-minded and informed observer test stated in Helow v Secretary of State for the Home Department [2008] UKHL 62, the court found no real possibility that Sedley LJ was biased. The observer is neither complacent nor unduly sensitive or suspicious. The facts in Helow were materially stronger, yet had not required recusal.

2. The alleged connection between Sedley LJ and the appellant’s solicitors was tenuous and indirect. Sedley LJ did not know of the matters said to comprise the “web of links”. Even if he had known of them, the British Tinnitus Association’s activities and website disclosed no substantial connection with the solicitors and no litigation-oriented purpose capable of supporting an inference of bias. The practical guidance in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 showed that even a judge’s previous receipt of instructions from a solicitor appearing before him would not normally require recusal. The alleged connection was appreciably weaker.

3. Sedley LJ’s mild tinnitus did not create apparent bias. A judge is not disqualified merely because the judge has a disability or other personal characteristic which is also relevant to the litigation. Such a rule would produce untenable consequences for judges with disabilities, female judges and others sharing a characteristic involved in a case. Combining this objection with the alleged links did not improve either ground.

4. A recusal application must be made as soon as practicable because it concerns the administration of justice. The respondents knew of Sedley LJ’s presidency at the outset and had an opportunity to investigate. Their unexplained delay supported the inference that the later material had not originally been regarded as serious. The objection also came too late.

The court concluded that the applications were without merit.

• Court of Appeal (Civil Division): Smith LJ and Jacob LJ refused the respondents’ applications for Sedley LJ’s recusal. The main appeal had already been determined by the full court, and the present judgment supplied the reasons for refusing recusal.
• County Court at Nottingham: The underlying noise-induced deafness litigation came before the Court of Appeal from His Honour Judge Inglis. The citation and disposition below are not stated in this judgment.