Emerald Supplies Ltd v British Airways

Recusal is assessed by asking whether a reasonably minded observer would conclude that there is a real possibility of bias. A judge’s personal dispute with a litigant does not automatically require recusal, particularly where the dispute is unrelated to the substantive issues. The court must consider the connection between the dispute and the litigation, the judge’s conduct, and the practical effect on the fair and efficient progress of the proceedings. A judge may nevertheless recuse where continued participation would create a substantial distraction or undermine the proper administration of a complex case, even if the grounds advanced by the party seeking recusal are rejected.

The claim involved complex competition litigation with numerous claimants and defendants. During the proceedings, the judge had a dispute with British Airways concerning delayed baggage on a flight operated under a British Airways flight number. He informed the parties of the dispute because he considered that the circumstances might resemble allegations in the litigation.

British Airways sought the judge’s recusal, contending that the dispute created an appearance of bias. The central issue was whether a reasonably minded observer would regard the circumstances as creating a real possibility of bias and whether the judge should nevertheless withdraw to avoid disruption to the proceedings.

1. Applicable test. The question was whether a reasonably minded observer would think that the circumstances gave rise to a possibility of bias. A simple dispute about baggage, considered in isolation, would not justify recusal.
2. Application. The judge considered that his complaint had been made to identify a potential conflict and to prevent the dispute from affecting the litigation. He rejected the proposition that notifying British Airways and its legal team immediately created a perception of bias. He also rejected the suggestion that he should have concealed the dispute while continuing to case-manage the proceedings.
3. Conduct of British Airways. The judge regarded British Airways’ failure to investigate and explain the baggage incident, followed shortly afterwards by the recusal application, as having escalated the situation. He considered the application opportunistic and rejected the grounds advanced for it.
4. Disposition. Despite rejecting British Airways’ stated grounds, the judge concluded that he could not allow his continued involvement and the dispute surrounding it to distract the parties from the complex litigation. He therefore recused himself for the reasons stated in his judgment, rather than because the alleged appearance of bias had been established.
5. The following week’s hearing was vacated. The parties were directed to apply immediately to the Chancellor for appointment of a substitute judge and to attend for directions before that judge on 2 October. No order was made as to costs.