Vikram Sachdeva QC succeeds in proving judge wrong to recuse himself

In Akers v Kirkland Ltd [2019] EWHC 2176 (QB) Mr Justice Waksman held that a district judge had been wrong to partially accede to the Respondent's application that he recuse himself on grounds of apparent bias, such that he agreed to recuse himself from a part heard hearing for one distinct issue.

That issue concerned the assessment of the fees of Counsel, which came to some £103,000 including success fee. The concern arose out of the fact that Counsel had since become a district judge in a neighbouring court, and the district judge considered as a matter of his discretion that there was a real possibility that a fair-minded observer may take the view that there was a potential for bias, in that it may be felt that a judge, consciously or subconsciously, might be minded to approach his or her colleague's fees of such an sum, generously.

Waksman J held that (1) the question of recusal was not a matter for the discretion of a judge, but a question of law, (2) if it did satisfy the test in Porter v Magill, recusal could not be avoided even if it caused inconvenience in the trial process; some judicial discomfort is not the test, and (3) Judges should take care to ensure that their recusal is in fact necessary, by the application of the objective fair-minded observer test.

On the facts, the test was not satisfied, the facts falling "well short" of establishing apparent bias. The judge had no direct or indirect interest in the amount of counsel's fees allowed, nor where they close socially, or on other personal terms that a fair-minded observer might think that there was a risk of the judge being too generous over the question of fees, for fear of disturbing their friendship.

Further, it was inappropriate for the Respondent to rely in submissions on apparent bias on the opinion of a retired judge.

In any event, even if there was a risk of apparent bias, the Respondent had waived any such right. Waksman J cited Baker v Quantum Clothing [2009] EWCA Civ 560 in which the court stated that it was not open to a party which thinks it has grounds for asking for recusal to take a "leisurely approach" to raising the objection; applications for recusal "go to the heart of the administration of justice and must be raised as soon as practicable." The Respondents had waited over a year since first being aware of Counsel's elevation and had waived any right to seek recusal.

Vikram Sachdeva QC acted for the Appellant.