Naim Lone v Michael Petrou

A judge is not disqualified merely because a litigant criticises judicial decisions or considers them wrong. Recusal requires actual bias, or apparent bias assessed by asking whether a fair-minded and informed observer would consider that there was a real possibility of bias. Applications must be made promptly and may be refused for inexcusable delay alone. A judge may continue dealing with proceedings while an appeal is pending, including considering the merits of a proposed appeal when deciding permission or a stay. Challenges to judicial decisions must be made by appeal, not through an investigation by the Ministry of Justice. Where an application is totally without merit, the court must consider certification and any appropriate civil restraint order.

The proceedings arose from a detailed assessment under Part III of the Solicitors Act 1974 between a solicitor and former client. Following assessment, an unsuccessful appeal application, and further costs proceedings, the claimant applied for the costs judge’s recusal and for a stay or variation of an order pending an investigation by the Ministry of Justice into the judge’s conduct.

The claimant alleged that the judge’s decisions, correspondence and case-management decisions created a reasonable concern of bias. The issues were whether the recusal application was timely and substantively justified, whether the proceedings should be stayed, and whether the applications were totally without merit.

1. Recusal. The applications were dismissed. The applicable test was whether actual bias had been demonstrated or whether a fair-minded and informed observer would conclude that there was a real possibility of apparent bias. The claimant’s disagreement with decisions, without more, could not justify recusal.
2. The recusal application was liable to dismissal for delay alone. The claimant had repeatedly raised, abandoned and revived recusal complaints, often only after adverse decisions or shortly before listed hearings.
3. The complaints did not establish apparent bias. They principally challenged decisions that had not been sought, arguments already rejected on appeal, ordinary case-management decisions, or decisions that were unremarkable. A judge may encourage settlement, allow a party to be heard, determine an application assigned to the judge, and continue to deal with a case while an order is under appeal.
4. When considering permission to appeal or a stay, it is permissible to consider the apparent merits of the proposed appeal. The court was not required to delay sealing an order merely because a party might seek to reopen matters already decided or agreed.
5. The stay application was refused. The Ministry of Justice had no jurisdiction to investigate judicial decisions or case management. Complaints about judicial conduct could be made to the Judicial Conduct Investigations Office, but decisions and case management could be challenged only by appeal.
6. The applications were certified as totally without merit under CPR 23.12. Although the court had jurisdiction to consider a limited civil restraint order under Practice Direction 3C, no such order was made because the applications had been made together and the proceedings were nearly complete.
7. The court also confirmed that a solicitor’s certificate on a bill creates a rebuttable presumption that the indemnity principle has not been breached. A written retainer is not generally required to recover reasonable charges absent a special statutory or contractual arrangement. A discrepancy between a costs schedule and detailed bill does not, without more, justify going behind the certificate.

The judgment records an earlier unsuccessful application for permission to appeal before Williams J on 20 December 2019. The present applications were determined at first instance by the Senior Courts Costs Office.