Howe & Anor v Gossop & Anor

A judge is not ordinarily required to recuse himself merely because he has made adverse findings in an earlier judgment or draft judgment in the same proceedings. Recusal is required only where the judge genuinely cannot give a fair hearing or a fair-minded and informed observer would conclude that there was a real possibility of bias. The assessment is objective and fact-sensitive. Previous findings may properly stand where they concern issues already determined, while provisional views on newly opened issues must remain open to reconsideration. Substantial evidence is required to displace the general rule that the same judge should continue with the case.

The claimants sought permission to appeal, and then appealed, against a recorder’s refusal to recuse himself from a neighbour dispute. The recorder had circulated draft judgments containing adverse credibility findings after a completed three-day trial, but had not formally handed down judgment. He later permitted amendments and further evidence concerning proprietary estoppel and related relief.

The claimants argued that the recorder had prejudged the further evidence and that the continuation of the trial created an appearance of bias. Permission to appeal was granted at the hearing. The central issue was whether the recorder’s earlier findings and conduct created a real possibility of actual or apparent bias.

1. Appeal dismissed. The recorder had applied the correct test for apparent bias. The applicable question, stated in Harb v Aziz [2016] EWCA 556, was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
2. The test was objective. The litigant’s own view was not determinative. The observer was assumed to know all relevant circumstances, including that judges must decide cases impartially and can discount matters that do not properly bear on the issues.
3. The general rule identified in Otkritie v Urumov [2014] EWCA Civ 1315 was that a judge should not recuse himself because of previous rulings or decisions in the same case. Recusal was justified only if the judge genuinely could not give a fair hearing or the fair-minded and informed observer would conclude that there was a real possibility of bias. Substantial evidence was required, and the question was highly fact-sensitive.
4. Amjad v Steadman-Byrne [2007] EWCA 348 was materially different. In that case the judge had expressed a concluded view before hearing the defendant’s evidence and had made additional comments suggesting rigid thinking against the defendant. Here, the recorder assessed credibility after hearing the evidence and receiving submissions, at the stage when such assessment was part of his judicial duty.
5. The recorder’s findings on claims 1 to 5 and 8 could properly stand because those matters were distinct from the newly evidenced proprietary-estoppel issues in claims 6 and 7. His views on the latter issues remained provisional and had to be reconsidered in light of the fresh evidence. The criticism of counsel did not establish a real possibility that the recorder’s approach to the parties or fairness of the proceedings would be affected.

The appeal was dismissed. The judge’s provisional view was that costs would follow the event.

1. High Court (Chancery Division): Permission to appeal was granted at the oral hearing, but the appeal against the recorder’s refusal to recuse himself was dismissed.
2. Recorder: The recorder refused to recuse himself from continuing the trial and refused permission to appeal.