Miley v Friends Life Ltd

The test for apparent bias is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A judge may invite submissions on an unargued point of law, including by exploring hypothetical outcomes, without creating an appearance of bias. Recusal applications should be made as soon as practicable. Delay may justify excluding the issue, although the court retains discretion to proceed to the substantive merits where that best serves the overriding objective. A judge’s request for clarification of the pleaded case, or an assessment of competing evidence, does not itself demonstrate pre-determination.

The claimant brought a claim under an income protection policy. The defendant alleged that he was exaggerating or fabricating chronic fatigue syndrome and had made inaccurate declarations about his income. After closing submissions, the judge invited further submissions on the possible legal effect of innocent or careless non-disclosure under the policy and sought clarification of the pleaded basis of the financial non-disclosure issue.

The defendant then applied for the judge to recuse himself for apparent bias, alleging that the correspondence showed pre-determination, partiality in the treatment of the evidence, and an attempt to raise a pleading point. The issue before the court was whether those matters would cause a fair-minded and informed observer to conclude that there was a real possibility of bias.

1. The application failed. The apparent-bias test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. The observer is objective, detached and informed, but recognises that fairness requires both actual and apparent impartiality.
2. A judge is not required to ignore a potential point of law merely because the parties have not fully developed it, absent an express concession that the point is not pursued. The proper course is normally to raise the issue shortly and neutrally with the parties. The judge must nevertheless remain alert to the risk of becoming committed to an argument merely because it was judicially raised.
3. The judge’s invitation to address the hypothetical consequences of an innocent or careless omission did not show pre-determination. The request was expressly hypothetical, followed the completion of the evidence and submissions, and did not determine the claimant’s state of mind. Exploring alternative outcomes is a legitimate part of judicial decision-making.
4. The same reasoning applied to the allegation that the judge had pre-determined the health-fraud issue. The defendant’s assessment of the strength of its case could not displace the objective approach required by the apparent-bias test.
5. Recusal applications must be raised as soon as practicable. CPR Part 1.3 and Practice Direction 23A 2.7 required the defendant to act promptly, and the delay was strongly criticised. The court could have excluded the issue for procedural default. It nevertheless exercised its discretion to hear the merits because further delay would have caused greater waste and would not have advanced the overriding objective.
6. The request for clarification of the paragraphs relied upon in the defence and counterclaim was made to ensure that the judgment accurately identified the pleaded case. It was not an attempt to raise a pleading point. The application was dismissed, and the judge stated that its making and failure would not affect determination of the substantive issues.

Not an appeal. The judgment determined an application for recusal during the trial of the claimant’s substantive insurance claim.