Ghadami v Bloomfield & Ors

Recusal is required where the circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility of judicial bias. The judge’s own assurances of impartiality carry no weight in that assessment. The test requires consideration of all relevant circumstances, including how the hearing was conducted. At the same time, a judge must resist recusal merely because a litigant criticises the judge or because recusal would be more comfortable. Where a judge receives an unsolicited communication from a party, disclosure to all parties and a fair opportunity to respond may prevent any appearance of unfairness.

The claimant brought proceedings against 19 defendants. Following a hearing before Deputy Master Mark, most claims were struck out. The claimant appealed the refusal of an adjournment and applied under CPR 39.3 to set aside the remaining orders.

Those matters had been heard by Norris J over several days. During the hearing the judge opened and read aloud an unsolicited letter from the Ninth Defendant, Mr Risbey, and offered the parties an opportunity to respond. The claimant later applied for the judge’s recusal, alleging apparent bias arising from the handling of the letter, the conduct of the hearing and subsequent correspondence. The issue was whether a fair-minded and informed observer would conclude that there was a real possibility of bias.

1. Application dismissed. The judge rejected the allegation of apparent bias and proceeded to deliver judgment on the appeal and the CPR 39.3 application.
2. The governing test was whether, having ascertained all the circumstances bearing on the allegation, a fair-minded and informed observer would conclude that there was a real possibility or real danger that the judge was biased. This followed the guidance in Locabail (UK) Ltd v Bayfield Properties [2000] QB 451 and Porter v Magill [2012] 2 AC 357 at [103]. The judge’s own protestations of impartiality were irrelevant to that objective assessment.
3. The recusal jurisdiction had to be balanced against the principle that litigants cannot choose their judges. The judge should resist recusal simply because a litigant has criticised the judge or because recusal would be more comfortable. The guidance in Triodos Bank v Dobbs [2005] EWCA Civ 468 at [8] was applied.
4. The receipt of Mr Risbey’s letter did not establish apparent bias. The judge had disclosed it openly, read it to the parties, invited written responses and allowed further material to be filed. The letter was not admitted as evidence; it was an open statement of Mr Risbey’s position and reasons.
5. The claimant’s complaints about the timing of the disclosure, minor inaccuracies when reading the letter, an administrative delay in sending copies, the judge’s correspondence, and the management of the hearing did not cause a fair-minded and informed observer to infer bias. Lesage v Mauritius Commercial Bank Ltd [2012] UKPC 41 did not assist because the judge had followed the course of disclosure and opportunity to respond contemplated in that decision.

The judgment records that the claimant had appealed the Deputy Master’s refusal of an adjournment and had applied under CPR 39.3 to set aside the other orders. Those matters remained to be determined after the recusal application was dismissed. No separate appellate history is stated.