Cruddas v Calvert & Ors

The test for apparent bias is whether, after considering all relevant circumstances, a fair-minded and informed observer would conclude that there was a real possibility of bias. A judge is not disqualified merely because an appellate court has reversed an earlier decision, or because the judge has made findings adverse to a party. Judges must bring a fresh mind to issues affected by new arguments, facts or appellate guidance. The duty to sit remains important. In fixing a hearing, the overriding objective requires the court to allocate proportionate resources between the case and other cases; counsel’s availability cannot govern the listing.

The defendants applied for the trial judge to recuse himself after the Court of Appeal had allowed their appeal in part against earlier decisions on the meaning of words complained of and the striking out of parts of the defence. The Court of Appeal restored an opportunity to amend the defence and directed that the case proceed to trial. The defendants relied on the judge’s earlier adverse rulings, his treatment of a justification defence and his reference to evidence from the newspaper’s former editor. The judge also had to decide when the trial should be relisted.

1. Recusal refused. The applicable test, stated in Magill v Porter [2001] UKHL 67; [2002] 2 AC 357, was whether the relevant circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or real danger, of bias.
2. The principles discussed in JSC BTA Bank v Ablyazov (Recusal) [2012] EWCA Civ 1551 confirmed that the issue depends on the particular facts. The mere fact that a judge has reached adverse conclusions, or that issues have been remitted after an appeal, does not establish apparent bias. The judge had not heard evidence or made findings of fact, the issues had materially changed after the appeal, and he had previously accepted an important submission advanced by the defendants.
3. The judge adopted the caution in In re J.R.L., Ex parte C.J.L. (1986) 161 CLR 342 at 352 that judges should discharge their duty to sit and should not too readily encourage attempts to obtain a different judge perceived as more favourable. A reasoned decision at trial would provide the proper basis for any challenge; the judge therefore declined to recuse himself.
4. The trial was listed to start on 2 July 2013 at 2 pm before the judge. The proposed date of 22 July was rejected because the case required substantial document examination and might not finish within the remaining term. Under the overriding objective, dealing with the case justly and proportionately included allocating resources to other cases. Counsel’s availability was relevant but could not be the governing factor.

1. Court of Appeal: Allowed the defendants’ appeal in part, restored an opportunity to amend the defence, and directed that the libel and malicious falsehood claims proceed to trial.
2. High Court (Queen’s Bench Division): Following the appeal, refused the application for recusal and listed the trial to commence on 2 July 2013.