Bates & Ors v Post Office Ltd (No 4)

Apparent bias is assessed by asking whether the fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. In long-running group litigation, a managing judge is not ordinarily disqualified merely because earlier case-management decisions or findings were adverse to a party. The judge may express provisional views and make findings necessary to determine issues already tried, provided the judge has not formed a premature and concluded view on issues reserved for later determination. The inquiry is fact-sensitive and requires consideration of the litigation as a whole, not isolated passages. A party that delays an objection while actively participating in the proceedings may waive any right to seek recusal.

The Post Office applied for the recusal of the managing judge from the group litigation and for the adjournment of the ongoing Horizon Issues trial. It relied principally on passages in the earlier Common Issues judgment, [2019] EWHC 606 (QB), which it said demonstrated prejudgment, criticism of its witnesses and apparent hostility.

The application was made nearly two weeks after the draft Common Issues judgment had been circulated and while the Post Office was near the end of its factual evidence in the Horizon Issues trial. The central questions were whether the earlier judgment created a real possibility of apparent bias and, if so, whether the Post Office had waived its objection by delay and continued participation.

1. Application dismissed. The court applied the test stated by Lord Hope in Porter v Magill [2002] 2 AC 357: whether the 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 is wholly fact-sensitive. The observer must consider the history and context of the litigation, including its scale, the judge’s managerial responsibilities, the issues actually decided, and the terms of the earlier judgment. Isolated passages should not be detached from the judgment as a whole.
3. A judge managing group litigation is expected to deal with case management and substantive issues, and to make findings on disputed facts necessary to determine the issues presently before the court. Earlier adverse rulings or findings do not, without more, establish prejudgment. A judge may form provisional views during a trial, but must not form or appear to have formed a concluded view on an issue before receiving the relevant evidence and submissions.
4. The earlier Common Issues judgment expressly stated that it made no findings on the Horizon Issues, breach, causation or loss. Those issues were legally and factually distinct from the contractual, agency and related matters already determined. The earlier findings therefore did not demonstrate that the judge’s mind was closed on the issues still to be tried.
5. The Post Office had received the draft judgment on 8 March 2019, participated in the Horizon Issues trial from 11 March, called almost all its factual witnesses, and issued the recusal application only on 21 March. Applying the principles discussed in Steadman-Byrne v Amjad [2007] EWCA Civ 625 and JSC BTA Bank v Mukhtar Ablyazov [2012] EWCA Civ 1551, that conduct would have constituted unequivocal waiver even if apparent bias had otherwise been established.
6. The application was not an appeal against the correctness of the earlier judgment. Recusal and appellate review involve distinct legal tests. The judge would continue as managing judge and resume the Horizon Issues trial, subject to further directions.

The judgment records earlier procedural and substantive decisions in the same group litigation, including Judgment No.2, [2018] EWHC 2698 (QB), and Judgment No.3, [2019] EWHC 606 (QB). The present court dismissed the recusal application and directed that the managing judge continue with the litigation.