Brake & Ors v Swift & Anor

A judge should recuse himself or herself for apparent bias only where the circumstances would lead a fair-minded and informed observer, knowing all relevant facts, to conclude that there is a real possibility of bias. The test concerns objective appearance and judicial conduct, not whether the judge may have made an error of law or failed to address every submission. Criticism of parties in case management decisions does not ordinarily establish apparent bias. A disclosed objection may be waived by failing to object promptly. An application to stay or adjourn a listed trial must identify a proper basis for revisiting an earlier refusal, including a material change of circumstances or other good reason.

The applicants sought recusal of the trial judge on grounds of apparent bias. They relied principally on the judge’s former school friendship with Dr Guy, a person associated with the second respondent, alleged failures to address submissions, procedural criticisms, and decisions concerning the scope of the forthcoming trial.

The applicants also sought a stay or adjournment of a two-day trial concerning revesting under section 283A of the Insolvency Act 1986, pending appeals concerning earlier strike-out decisions. The judge had previously refused similar applications and had decided that the second respondent need not prove its title before participating in the revesting proceedings.

1. The application for recusal was dismissed. The applicable test was whether the circumstances would lead a fair-minded and informed observer, knowing all relevant facts and taking an objective and dispassionate view, to conclude that there was a real possibility of bias.

2. The judge’s former school friendship with Dr Guy, ending more than 40 years earlier and followed by no contact, did not satisfy that test. The relationship had been disclosed in July 2019 and the parties had expressly raised no objection. Any objection based on it had therefore been waived.

3. The judge’s failure to discuss allegations of unlawful conduct in decisions where those allegations did not arise for determination could not establish apparent bias. Nor was a judge required to address every individual submission. A judgment is read on the basis that the judge understood the judicial function and considered the matters requiring consideration.

4. Procedural criticism, case-management decisions, criticism directed at both sides, or a disagreement with the judge’s legal reasoning did not establish apparent bias. The remedy for an alleged legal error was an appeal. The fair-minded observer was not to be transformed into an appellate judge.

5. The application for a stay or adjournment was also dismissed. The applicants bore the burden of showing a proper basis for revisiting the earlier refusal. The judgment of 4 May 2020 was not a material change of circumstances: the earlier judgment had not finally decided that the second respondent had to prove standing at trial.

6. Even if the earlier judgment had made such a decision, the later ruling narrowed rather than enlarged the trial. The remaining issues were sufficiently confined to be tried as listed, and complaints about preparation and the trial bundle justified no more than a short practical adjustment, not a stay pending appeal.

First-instance decision. The judgment refers to earlier decisions in the same litigation, including [2019] EWHC 3332 (Ch), [2020] EWHC 537 (Ch), [2020] EWHC 694 (Ch) and [2020] EWHC 1071 (Ch), and to pending or prospective appeals from earlier orders.