Kimyani & Ors v Sandhu

A judge must recuse himself where actual or apparent bias is established. Apparent bias is assessed objectively: the question is whether an informed and fair-minded observer, knowing all the relevant circumstances, would conclude that there was a real possibility of bias. The observer is distinct from the litigant and is not affected by the litigant’s subjective concerns. Adverse procedural decisions, case-management delays, refusal to adopt a party’s submissions, or the fact that another judge previously reached a different conclusion do not, without more, establish apparent bias. Judges must also resist recusal applications that would enable litigants to select their judge. Recusal is required only where the evidential case crosses the applicable threshold.

The defendant, acting in person, applied for Master Matthews to recuse himself from further proceedings concerning the administration of her late mother’s estate. The underlying claim had been brought by the defendant’s three sisters, who sought her removal as administratrix and an account of the estate. Following various case-management decisions, costs orders and interim charging orders, the defendant alleged actual and apparent bias. Her complaints concerned the conduct and timing of hearings, the judge’s alleged relationship with counsel’s chambers, adverse rulings, delay, and the judge’s treatment of her evidence and submissions. The central issues were whether there was credible evidence of actual bias and whether the circumstances would lead an informed and fair-minded observer to conclude that there was a real possibility of apparent bias.

1. The application for recusal was dismissed. There was no credible evidence of actual bias. The judge formally recorded that he was not actually biased, and the defendant’s allegations that he had predetermined matters or taken the claimants’ side were unsupported.
2. The governing test for apparent bias was whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or real danger, of bias, as stated in Re Medicaments and Related Classes of Goods (No 2) and endorsed in Porter v Magill. The observer is objective, dispassionate and treated as knowing all relevant circumstances, whether publicly available or not: Harb v HRH Prince Abdul Aziz bin Fahd bin Abdul Aziz and Virdi v Law Society.
3. The complaints did not meet that test. Proceeding with a hearing after late service of documents was practical case management. The judge was the properly assigned master after his predecessor’s retirement. Any professional connection with a barristers’ chambers did not establish a disabling relationship. Decisions adverse to a litigant, disagreement with an earlier judge, adjournments, delay, and refusal to accept submissions were not, without more, evidence of apparent bias.
4. The interim charging-order procedure also provided no basis for recusal. An interim order could properly be made on the evidence supplied on the papers, with the debtor entitled to challenge it on the return day. The judge had not seen the defendant’s later evidence when making the first order.
5. Recusal rules protect the integrity of the judicial process, other litigants and public confidence. Judges must not recuse themselves merely because a litigant criticises them, since that would permit litigants to choose their judges: Dobbs v Tridos Bank NV.

The outstanding applications were to be relisted after judgment was handed down.