Surrey Heath Borough Council v Robb & Ors

The apparent-bias test asks whether a fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. Earlier interim rulings, including repeated findings against a party, do not ordinarily establish apparent bias where they were provisional, based on limited evidence and made for interlocutory purposes. A judge’s familiarity with the case and continued designation for trial may support efficient and fair case management. Recusal remains fact-sensitive and is required where the judge has expressed extreme or intemperate views, or substantial evidence demonstrates prejudgment.

The claimant local authority brought proceedings concerning development and occupation of land by the defendants. Interim injunctions had been granted and continued before the application, including an injunction restraining occupation pending a speedy trial. The same judge had dealt with the interim hearings and had been designated to case-manage and try the action.

The first five defendants applied for the judge’s recusal on grounds of apparent bias. They relied on adverse interim rulings, observations about their evidence and participation, and the fact that the judge was to continue with the case. The central issue was whether those circumstances would cause a fair-minded and informed observer to apprehend a real possibility that the judge would be unable to approach the trial impartially.

1. The application was dismissed. The judge was satisfied that a fair-minded and informed observer would not apprehend a real possibility of bias and there was no reason to recuse himself.
2. The governing test was whether the fair-minded and informed observer, having considered the relevant circumstances, would conclude that there was a real possibility that the tribunal was biased. The observer was neither unduly suspicious nor complacent, and would understand the distinction between interim decision-making and a full trial.
3. The interim hearings had not constituted a trial or a hearing of the full argument. They were based on limited written evidence, without oral evidence, cross-examination or advance disclosure. The merits assessment was provisional and directed to whether a sufficiently strong prima facie case and appropriate balance of convenience justified interim relief.
4. Previous interim decisions do not, without more, demonstrate prejudgment. A case may change substantially after disclosure, fuller evidence and cross-examination. The judge’s earlier observations had expressly preserved the parties’ opportunity to present their full cases at trial.
5. Continuity and designation of the same judge for case management and trial were legitimate considerations. The speedy trial had been arranged, with the parties’ agreement, to provide an early full hearing including oral evidence and cross-examination. Those circumstances gave no objective basis for apprehending bias.
6. The observations concerning the defendants’ evidence and ability to participate did not amount to findings that witnesses were unreliable or to extreme or intemperate expressions capable of grounding recusal.