Zuma's Choice Pet Products Ltd & Anor v Azumi Ltd & Ors

Apparent bias depends on whether all relevant circumstances would lead the fair-minded and informed observer to conclude that there was a real possibility of bias. A part-time judge’s membership of the same chambers as an advocate does not, without more, create that appearance.

The assessment is fact-sensitive and cumulative. Allegations against an associated advocate may matter, but unfounded allegations which have already received judicial scrutiny and are irrelevant to the issues do not necessarily require recusal. A professional judge may ordinarily be expected to identify and disregard irrelevant material in a hearing bundle. Previous adverse judicial decisions against a litigant do not generally establish bias unless the judge has expressed a final, concluded view on the same issue.

The appellants were involved in trade mark infringement and groundless-threats proceedings in the Intellectual Property Enterprise Court. They sought summary judgment on the threats claims. When the renewed application came before Recorder Campbell QC, Ms Vanderbilt sought his recusal because he belonged to the same chambers as the respondents’ leading counsel and had received a bundle containing a letter in which she made allegations against that counsel and others.

The Recorder refused to recuse himself in [2017] EWHC 45 (IPEC). The substantive actions were subsequently tried, so the present appeal could achieve no more than setting aside the Recorder’s order, including his costs order. The central issue was whether the chambers association, the disputed letter and the surrounding circumstances, separately or cumulatively, created an appearance of bias.

1. Appeal dismissed. Applying the fair-minded and informed observer test in Porter v Magill [2001] UKHL 67, the circumstances did not create a real possibility that Recorder Campbell QC was biased.

2. A judge’s past determination of applications or issues adversely to a litigant does not generally require recusal from later hearings involving that litigant. The observer does not assume that an adverse ruling means that future issues have been prejudged. The position may differ where the judge has expressed a final, concluded view on the very issue later arising. Floyd LJ’s earlier decisions concerning permission to appeal and reopening under rule 52.30 of the Civil Procedure Rules 1998 involved different issues and therefore did not justify his recusal from this appeal.

3. Smith v Kvaerner Cementation Construction Ltd [2006] EWCA Civ 242 established that a part-time judge’s mere membership of the same chambers as an advocate does not itself create an appearance of bias. No financial or conditional-fee feature suggested a different conclusion here.

4. The inclusion of irrelevant material in a bundle does not ordinarily create apparent bias. A professional judge can disregard such material and, when alerted to the danger of influence, exercise particular care. Lesage v Mauritius Commercial Bank [2012] UKPC 41 was distinguishable because the judges there received potentially influential privileged material without considering whether they should continue hearing the case.

5. The circumstances nevertheless had to be assessed cumulatively. Recusal is acutely fact-sensitive, and an accusation against an advocate associated with the judge may, in another case, create a real possibility of bias. No general rule should permit a litigant to disrupt specialist listings merely by accusing an advocate of misconduct.

6. Here the allegations had already received careful judicial scrutiny and had been dismissed as unfounded misunderstandings of procedure. They were historical and irrelevant to the summary judgment application. The Recorder knew of their rejection and was alert to the need to disregard them. Neither the chambers association nor the allegations, alone or together, required recusal. Patten LJ agreed.

• Court of Appeal (Civil Division): The appeal was dismissed by the court in [2017] EWCA Civ 2133. The Recorder’s refusal to recuse himself remained undisturbed.
• Intellectual Property Enterprise Court: Recorder Campbell QC refused the recusal application in [2017] EWHC 45 (IPEC).
• Subsequent proceedings: The substantive trade mark and groundless-threats claims were later tried by HHJ Melissa Clarke. Consequently, no renewed summary judgment hearing could usefully have been ordered in this appeal.