Michael Wilson & Partners Ltd v CJSC KazSubton & Ors

An application for recusal must be determined by asking whether all the relevant circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. The observer is neither unduly sensitive nor suspicious, and context is crucial.

Previous decisions against a party, disagreement with those decisions, appellate reversal, judicial frustration, blunt language, substantial costs, or the use of a remote hearing do not, viewed in context, establish apparent bias. A judge may express a robust view where appropriate. The application was therefore dismissed.

The claimant applied to set aside an order dated 26 March 2020 and to reinstate its application for the recusal of Master Yoxall. The recusal application arose from allegations concerning earlier rulings, an appellate decision in related proceedings, the conduct of hearings, the refusal to admit further evidence, costs orders and the use of a remote hearing during the Covid-19 pandemic.

The court considered whether those matters, individually or cumulatively, would lead a fair-minded and informed observer to conclude that there was a real possibility of bias.

1. Disposition. The application to set aside the order of 26 March 2020 was dismissed. The recusal application remained dismissed and was described as totally without merit.
2. Applicable test. The court applied the test approved in Porter v Magill [2001] UKHL 67, adopting the formulation in Re Medicaments and related Classes of Goods (No.2) [2001] 1 W.L.R. 700. The question was whether all circumstances bearing on the allegation would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. The observer was not unduly sensitive or suspicious, and context was crucial.
3. The Court of Appeal decision in Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 55 did not provide a basis for recusal. The appellate court had itself regarded the issues as difficult, and its decision did not establish embarrassment, resentment or bias.
4. Earlier adverse rulings did not demonstrate bias. A judge deciding an application against a party is not thereby biased. Allegations that the judge misunderstood evidence, used blunt language, ordered substantial costs, or refused further evidence were matters for appeal or costs assessment, not evidence of apparent bias. A trial concerning alleged fraud would require cogent evidence; bare assertions were insufficient.
5. The January and March 2020 hearings, including the refusal to adjourn a hearing conducted remotely during the pandemic, were assessed in their full context. Judicial frustration arising from late bundles, absent counsel and repeated adjournment requests did not amount to apparent bias. The relevant circumstances did not satisfy the legal test.

The judgment itself was a first-instance decision on an application to set aside an earlier order and reinstate a recusal application. It records that certain earlier orders had been appealed, but no appellate decision concerning the present application is stated.