Watts v Watts

The test for apparent bias is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Professional collaboration between a part-time judge and counsel in separate, unrelated litigation does not ordinarily meet that test. The observer is taken to understand the ethical standards governing judges and barristers.

A judge must disclose the material facts supporting a realistic recusal application, but need not disclose every background detail. A recusal decision may be announced immediately with reasons to follow where that is a sensible case-management course and does not create an objective appearance of unfairness.

A brother and sister disputed their late mother’s estate. The sister successfully challenged a 2011 will and obtained an order admitting a 1999 will to probate. The deputy High Court judge had refused to recuse herself although, in her practice as a barrister, she was leading the sister’s junior counsel in unrelated litigation.

Permission to appeal the merits was refused. Permission was granted on whether the orders should be set aside for apparent bias. The brother contended that the judge had disclosed too little, had improperly delayed giving reasons for refusing recusal, and might favour counsel because his remuneration under a conditional fee agreement depended on the result.

1. Appeal dismissed. The governing question was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. This common-law test accords with article 6 of the European Convention on Human Rights: Porter v Magill [2001] UKHL 67 applied.
2. The judge had disclosed the material facts by stating that she was leading counsel for the sister in separate litigation. Disclosure extends to material facts supporting a realistic recusal application, not every background detail. The other litigation did not overlap with the proceedings, and confidentiality obligations also weighed against unnecessary disclosure.
3. A party may politely seek further factual information where it is reasonably required to formulate an informed recusal application. The rule preventing inquiry into extraneous influences upon a judge for the purpose of proving actual bias does not prohibit such a request.
4. The judge was entitled to announce her refusal of recusal at the beginning of the trial and give reasons later. This avoided delay and additional cost and was a proper case-management decision under Part 1 of the Civil Procedure Rules 1998. The objective observer would not regard that procedure as displaying unfairness.
5. The observer would understand the professional and ethical standards governing practising barristers and part-time judges. The judge would neither favour junior counsel to preserve their working relationship nor expect him to resent an adverse decision. His conditional fee agreement did not alter that assessment.
6. Professional relationships may be considerably closer than the relationship in this case without creating apparent bias. A materially different position may arise from an ongoing barrister-client relationship or from a real risk that the judge’s ruling will affect separate litigation in which the judge acts as counsel. Neither circumstance existed here.

Cobb J and Sir Stanley Burnton agreed with Sales LJ.

1. Court of Appeal (Civil Division): The appeal on apparent bias was dismissed. Sales LJ gave the judgment, with which Cobb J and Sir Stanley Burnton agreed.
2. High Court, Chancery Division (Probate): Catherine Newman QC, sitting as a deputy High Court judge, refused the recusal application and later pronounced against the 2011 will, directed that the 1999 will be admitted to probate, and found it unnecessary to grant relief under the Inheritance (Provision for Family and Dependants) Act 1975.
3. Permission to appeal: Briggs LJ refused permission concerning the merits but granted permission on apparent bias.