Mengiste v Endowment Fund for the Rehabilitation of Tigray & Ors

A judge who has heard the substantive proceedings should ordinarily determine a subsequent wasted costs application arising from that case. Criticism of parties, witnesses or solicitors in the judgment is an ordinary incident of the judicial function and does not, by itself, establish apparent bias. Recusal is required only where a fair-minded and informed observer would conclude that there is a real possibility that the judge cannot approach the application impartially. The criticism must be sufficiently extreme or unbalanced to create that concern. The judge must also preserve a fair opportunity for the respondent to explain the conduct, including where privilege prevents full disclosure.

The defendants applied for a wasted costs order against the claimants’ solicitors, Rylatt Chubb, following the judge’s criticism of an expert witness and of the solicitors’ conduct in presenting his evidence. Before that application was heard, Rylatt Chubb applied for the judge to recuse himself, arguing that the judgment showed he had already concluded that the solicitors were at fault and could not fairly determine the wasted costs application. The issue was whether the judge’s criticism, together with the circumstances and timing of the recusal application, created a real possibility of apparent bias.

1. The recusal application was refused. The judge’s criticism of the expert and the solicitors formed part of his duty to decide the substantive case and to explain how the evidence had come to be presented. It did not demonstrate actual bias or apparent bias.
2. The applicable question was whether a fair-minded and informed observer would conclude that there was a real possibility that the judge could not approach the wasted costs application with an impartial mind. Mere criticism was insufficient. The criticism had to be extreme or unbalanced so as to cast doubt on the judge’s ability to give a fair hearing.
3. The judge who had heard the underlying case was ordinarily the appropriate judge to hear the wasted costs application, because of his knowledge of the evidence, reports, cross-examination and procedural history. Departure from that course required an exceptional reason.
4. The judge accepted that the defendants’ case concerned the solicitors’ decision to continue presenting reports which were plainly non-compliant with the requirements governing expert evidence, rather than merely the fact that the underlying claim had been hopeless. Solicitors do not incur wasted costs liability simply by acting in a hopeless case, but liability may arise from their participation in the presentation of a truly bad case.
5. The wasted costs application remained to be determined summarily. Rylatt Chubb would have a full opportunity to respond. If privilege prevented them from presenting the complete factual position, they would receive the fullest benefit of that inhibition.