Stratton Mortgage Funding 2019-1 PLC & Ors v Stratton Hawksmoor 2022-1 PLC & Ors

An application for judicial recusal is determined by asking whether the fair-minded and informed observer, having considered the facts and context, would conclude that there is a real possibility of apparent bias. A judge’s earlier adverse decisions, without more, do not ordinarily establish apparent bias. Recusal applications should be made promptly because delay may disrupt the administration of justice and, where inordinate and unexplained, may justify dismissal.

The defendants applied to strike out proceedings or, alternatively, for summary judgment. The claimants then applied for the judge’s recusal and sought determination on paper without submissions from the defendants.

The court directed that the recusal application be heard before the substantive application. The claimants challenged the listing as vacation business and relied principally on the judge’s conduct and decisions in earlier proceedings. The central issue was whether a fair-minded and informed observer would conclude that there was a real possibility of apparent bias.

1. Application dismissed.
2. The governing test was whether the fair-minded and informed observer, having considered the facts and context, would conclude that there was a real possibility that the tribunal was biased. The observer is detached, neither unduly sensitive and suspicious nor complacent.
3. The defendants were entitled to make submissions on the recusal application. The listing of the substantive application as vacation business was justified because delay could disrupt a securitisation transaction, prejudice third parties and cause losses not necessarily remediable in damages.
4. The recusal application was made three days before the listed hearing. Recusal applications should be made promptly, and inordinate and unexplained delay may justify disposal of the application.
5. The complaints principally challenged earlier adverse decisions. Those decisions did not objectively demonstrate bias. The judge’s previous rulings concerning Article 6 rights, company authority to litigate and civil restraint orders did not support a reasonable inference of apparent bias.
6. Considering the grounds individually and collectively, the fair-minded and informed observer would not conclude that there was a real possibility of bias.