CD v MD

Apparent bias requires a structured assessment. The court must identify all circumstances bearing on the allegation and then ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias or that the party would not receive a fair trial.

There is no blanket rule requiring disclosure to the parties of every administrative or case-management communication involving a judge. Each communication must be assessed on its substance and context. Non-disclosure alone will not ordinarily establish apparent bias where the communication contains no potentially prejudicial material. Allegations of unfairness must also be assessed by reference to the proceedings as a whole.

The applicant, a father in proceedings under the 2007 Hague Maintenance Convention, applied for the recusal of the allocated judge. He relied on three undisclosed communications involving the judge, court staff and a legal adviser connected with the registration of a Colorado child-support order. He also alleged that the judge had failed adequately to explain or disclose those communications.

The application required the court to determine whether the communications, their non-disclosure, or the judge’s handling of related disclosure requests created a real possibility of apparent bias or that the father would not receive a fair trial.

1. Application dismissed. The communications did not justify recusal.
2. The applicable test involved two stages. The court first identified all circumstances bearing on the allegation. It then asked whether a fair-minded and informed observer, having considered those circumstances, would conclude that there was a real possibility that the judge was biased. The broader question whether the party would receive a fair trial was preferable to an unduly narrow definition of bias. The assessment included procedural decisions, interventions and interactions during the proceedings, and required consideration of the proceedings as a whole.
3. There was no blanket rule that a judge must promptly disclose every administrative or case-management communication. The communications had to be assessed on their merits. A communication concerning listing, disclosure administration or the orderly conduct of proceedings would not itself justify recusal unless it contained, or evidenced, potentially prejudicial material.
4. The October 2022 communication, even on the applicant’s interpretation, did not obstruct his ability to seek disclosure or make a formal application. The November 2022 communication merely informed the court that HMCTS was awaiting guidance from its disclosure team. The December 2022 communication, if made, only conveyed the listing position. None contained material capable of causing a fair-minded and informed observer to conclude that there was a real possibility of bias.
5. FPR 29.12 did not assist the applicant on the recusal issue. It recognised that permission could be sought to access documents retained by the court, but that procedural entitlement did not determine whether the Colorado order had been properly registered.