Red River UK Ltd & Anor v Sheikh & Anor

An apparent-bias application is determined by asking whether the fair-minded and informed observer would conclude that there was a real possibility of bias. The question is objective. A judge’s assurance of impartiality is not decisive, and, where the test is satisfied, convenience, cost or delay cannot justify continuing.

Judges have a duty to hear cases allocated to them and should recuse themselves only where proper grounds are established. Adverse interim rulings, forceful case-management decisions, or a party’s loss of confidence do not, without objectively justified grounds, establish apparent bias. Allegations of fraud must be properly pleaded and supported by evidence; the court should not act on material supplied unilaterally by one party or assume an inquisitorial role.

The first defendant applied for the judge’s recusal from the underlying litigation and related matters. She alleged actual and apparent bias based principally on earlier decisions, case-management directions, the certification of applications as totally without merit, a warning concerning a possible civil restraint order, and alleged racial and religious discrimination.

The claimants did not attend the hearing. The application required the court to determine whether the allegations established actual bias or whether a fair-minded and informed observer would conclude that there was a real possibility of apparent bias. The judge also addressed the applicant’s contention that the court should have acted on documents and allegations concerning an alleged fraud without a properly litigated application.

1. The application was dismissed. The judge concluded that neither actual bias nor apparent bias had been established, and that it was his duty to continue hearing the case.

2. The governing test for apparent bias was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The question was one of objective justification. The judge’s own assertion that he was unbiased was unlikely to assist materially.

3. Recusal applications must be approached with the competing duty of judicial officers to hear cases allocated to them. Judges should not accede too readily to unfounded applications, since repeated applications could enable a litigant to seek a judge perceived as more favourable. Any genuine doubt about the applicability of the apparent-bias test should be resolved in favour of recusal. If the test is satisfied, convenience, cost and listing considerations cannot justify continuing.

4. The judge’s earlier interim judgment, strong language, certification of applications as totally without merit and warning about a possible civil restraint order did not objectively demonstrate bias. In context, the earlier views were provisional and based on the material then available. Subsequent case-management directions gave the applicant the opportunity to plead and present her case properly.

5. The applicant’s wider complaints rested on a misunderstanding of the judicial process. Allegations of fraud had to be clearly and distinctly pleaded and supported by adequate evidence. Except in wholly exceptional circumstances, the court should act only on proper applications, with appropriate notice and evidence properly before it. Judges did not have a separate inquisitorial role and could not make findings of fraud from documents supplied unilaterally by one party.

6. The judge declined to take account of further documents substantially exceeding the promised one-page submission, although he read the submissions and found no significant new argument.