Dorman & Ors v Clinton Devon Farms Partnership

An appellate court should afford substantial latitude to case-management decisions, but must intervene where orders are plainly wrong, unjust or procedurally unfair. Robust case management does not itself establish apparent bias. The issue is whether the fair-minded and informed observer would conclude that there was a real possibility of bias. The assessment must consider the judge’s orders, language, apparent prejudgment and approach in combination. A judge should not impose penal procedural or costs orders without giving the affected party a proper opportunity to make submissions.

The defendant appealed against orders made by HHJ Gore QC in two related personal injury claims arising from a fatal farm accident. The first appeal concerned unless orders, indemnity costs and an order requiring attendance by the defendant’s senior case handler. The second challenged the judge’s refusal to recuse himself for apparent bias.

The claims had been delayed by the late issue of proceedings and criminal proceedings arising from the accident. The parties had agreed consent directions, but the judge imposed more onerous orders at a case-management hearing. The central issues were whether those orders were justified and whether the judge’s conduct and comments created a real possibility of apparent bias.

1. First appeal. The appeal was allowed. Although a judge is not bound by consent orders and must further the overriding objective, the unless order and indemnity costs order were unjustified. The defendant had not breached any relevant order or pleading deadline. In one action the particulars had only recently been served; in the other, a defence had already been served. The judge’s mistaken attribution of the delay to the defendant materially affected his decisions.
2. The attendance order was also unjustified. Disclosure had not yet been ordered, and the parties were awaiting material from recently concluded criminal proceedings. The judge imposed the orders without inviting submissions. That was plainly unfair at a basic procedural level.
3. Apparent bias. Applying the test in Porter v Magill [2002] 2 AC 357, the court considered the orders, the judge’s intemperate and threatening language, his apparent intention to penalise the defendant in future costs and case-management decisions, and his provisional comments on liability in combination. A fair-minded and informed observer would conclude that there was a real possibility of bias. Merely deciding procedural matters against a party would not have been sufficient, but the cumulative circumstances crossed that threshold.
4. The second appeal was therefore allowed and the judge was recused. The recusal judgment was affected by errors, including considering the matters separately, attempting retrospectively to justify the earlier comments, and relying on supposed procedural defaults which did not exist. Additional legal research undertaken after the hearing could not cure the appearance created on 23 May 2019.
5. The argument of actual bias was not open on the appeal because permission had been granted only on apparent bias grounds and actual bias had not been clearly advanced below.

• High Court (Queen’s Bench Division): Allowed appeals against the orders of HHJ Gore QC dated 23 May and 25 July 2019. The material parts of the first order were set aside and the judge was recused.
• County Court at Exeter: HHJ Gore QC made the case-management orders and dismissed the defendant’s application for recusal.