In the second such case in a month, a judge has refused to recuse herself at the request of a litigant, but on this occasion the Court of Appeal has reversed that decision and ordered that she step down from the case and let another judge take over.
In the earlier case, the litigant complained that there was a risk of apparent bias because the judge had previously been in the same chambers as the other side’s barrister and had supervised him as a trainee. But there was also a complaint about the way the judge conducted the hearing.
In C (A Child)  EWCA Civ 987 the situation was rather more stark. The judge was overheard making disparaging remarks about the litigant during a short break in proceedings, while she was speaking to her clerk in her room, but was unaware that the laptop was still connected to the remote hearing via Zoom. Having been alerted to the situation, the judge told the parties it would be understandable if an application was made for her to recuse herself; but when such an application was made next day, she refused it. The Court of Appeal said that was wrong.
This was certainly an awkward situation and well illustrates one of the hazards of remote hearings. The case was of a sensitive and stressful nature: a fact-finding hearing intended to establish whether the death of an 18-month-old boy from catastrophic head injuries had been caused intentionally and, if so, by whom. The trial was conducted by way of a hybrid hearing, ie part remote and part in court, subject to appropriate distancing measures. The mother was one of the parties who were physically in court, with their legal teams, and giving evidence before the judge. After giving evidence for two days, the mother said she was unwell with back pain and blurred vision, and, on the third day, said she had also developed a cough. The judge said she should go home and complete her evidence remotely.
At this point the court adjourned to allow the necessary arrangements to be made. An associate took the judge’s laptop back to her room but, unbeknownst to the judge, although the laptop was closed, the remote link to the courtroom and all the parties on the Zoom hearing remained open and active. A number of people therefore overheard the judge having a private phone conversation with her clerk, in the course of which she voiced her frustration at further delay in the case, which was taking longer than anticipated, and made pejorative comments about the mother, including that she was pretending to have a cough and was trying “every trick in the book” to avoid answering difficult questions.
The application to recuse
It may seem odd that the judge should have anticipated that there might be an application for her to recuse herself, but then went on to decide not to do so. But it would have been irresponsible for her simply to decide without weighing up all the factors, and hearing submissions from the parties. The mother, not surprisingly, wanted the judge to recuse herself, but the father, the children’s guardian and the local authority remained neutral, and the intervener (the mother’s current partner) was in favour of continuing the trial. So the parties were divided over the issue and that meant it was not as clear cut as it might have been.
The test to be applied, said the Court of Appeal, was “whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased”. This is a well known formula which has been endorsed in a number of cases, including Porter v Magill  UKHL 67;  2 AC 357 at .
In another case, Ansar v Lloyds TSB Bank plc  EWCA Civ 1462 at  the Court of Appeal had said:
“The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection…”
But it added that “In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal”.
The judge accepted that her comments were “robust”, “critical” and “absolute in their terms” and that they conveyed a “negative view” of the mother, but said when other matters were taken into consideration they did not “cross the line”. Whilst she greatly regretted what had happened and understood the hurt her comments must have caused to the mother, the fair minded and informed observer, having considered the facts would conclude that there was no real possibility of bias on her part. She therefore refused to recuse herself, and the mother appealed.
The appeal decision
The Court of Appeal allowed her appeal. They accepted that the judge was under pressure and was trying to “keep the show on the road” during the pandemic in spite of all the difficulties presented by hybrid and remote hearings, and that she greatly regretted what had happened. But, they said:
“29. We find that a particularly troubling aspect is whether the fair-minded observer might consider that the judge had formed an unfair view of the Appellant on the basis of something that could have been but which was never put to her; namely, that she was inventing a cough in order to avoid having to answer difficult questions.
30. We have considerable sympathy with the judge. We have, however, no hesitation in concluding that her comments did indeed fall on the wrong side of the line. The fact that the comments were intended to be private does not salvage the situation in circumstances where those comments were, unhappily, broadcast across the remote system and were made during the course of the Appellant’s evidence. …
31. …. The case could not be more serious. The Appellant is accused of either causing the death of her toddler or of failing to protect him from the man who caused his death. The judge made highly critical remarks about the Appellant’s honesty during the course of her evidence, remarks which we believe a person looking in from the outside could not do other than think would colour the judge’s view of that witness and demonstrate a real possibility of bias.”
The result is that the case will need to be passed to another judge. This is unfortunate, given the complexity and sensitivity of the case, and will only add to the pressure on limited court and judicial resources.
It may be tempting to compare this case to the earlier one and wonder whether, if that had gone to the Court of Appeal, it might have been reversed as well. The facts in that case were much less damaging though. The main complaint was based on a general suspicion that judges might favour a barrister from their old chambers; there was no actual evidence of how the judge was thinking. There was, it’s true, a secondary complaint about the way the judge conducted the hearing after the litigant appeared to have become unwell, but that was already the subject of a disciplinary complaint. In the present case, there was much more evidence, in the judge’s overheard remarks, to suggest the possibility of bias, and that pushed the case over the line.
But it’s also a cautionary tale for all judges and practitioners, and indeed anyone who uses communication technology, to be vigilant as to what you are saying and to whom at any time. As our chair Lucy Reed has pointed out in a post about this on her Pink Tape blog (That Homer Moment):
“In my own direct experience since remote working became the norm as a result of covid I can think of a number of similar errors (a guardian saying ‘oh shit’ loudly when her wifi was intermittently not working – which unfortunately was working at the moment she uttered the expletive, a colleague muttering the F word thinking he was muted but being heard by the judge, a party’s legal representative describing her client during a break as ‘not very bright’, when said client was still on the link, and an advocate starting to take her client’s instructions during a break without muting herself). The frequency of these mistakes will reduce with familiarity and practice (and no doubt as a result of reading this judgment), but their consequences have potential to be significant, and to have profound effects on the confidence a party has in their lawyer, the judge or the process as a whole.”
She also comments on the likely significance of the judge’s outburst to the way she would ultimately have decided the case, suggesting that while it may look bad, an expression of exasperation with a witness does not necessarily indicate pre-judgment of the issues in the case, and even in normal circumstances judges can form a preliminary view which is always open to revision.
“So, whilst the Court of Appeal in the specific case obviously had to conclude, in fairness to the family concerned, that a fresh judge was needed, we should perhaps in fairness acknowledge that the overheard words were likely to be a snapshot and an impression rather than a conclusion, however much they may have been felt as prejudicial and as if the judge had made her mind up.”
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Featured image: Photo by Miryam León on Unsplash.