Luka Krsljanin discusses applications for judicial recusal in Law360
New Guidance From The High Court On Recusal Applications
Applications for a judge to recuse themselves on grounds of actual or apparent bias are, unsurprisingly, apt to be contentious and often controversial. Most of the legal community will recall the debate surrounding an application for Justice Peter Smith to recuse himself from the case of Emerald Supplies Ltd. v British Airways in July 2015.
With his recent judgment on a recusal application in Miley v Friends Life Limited  EWHC 1583 (QB), Mr Justice Mark Turner has given practitioners guidance on how to approach applications for judicial recusal, and has highlighted the key points to be aware of when contemplating making such an application.
Background to the Application: The Underlying Case
The claimant alleges that he is, and has since 2009 been, suffering from chronic fatigue syndrome which prevents him from working; prior to 2009 he had been employed as a stockbroker by the international firm Piper Jaffray Ltd. He claims that as a result of his inability to work, he is entitled to benefit from an income protection policy between his employer and the defendant, which provides that an employee will be paid approximately 70 percent of their pre-illness earnings if they are totally unable to work by reason of sickness.
For several years, the defendant made payments to the claimant under the policy on the basis of numerous detailed representations he made to them about his alleged illness and level of functionality. Eventually, in the summer of 2013, after obtaining surveillance evidence and independent medical assessments, the defendant terminated payments to him. The claimant alleges that this is a breach of the policy, and that he is (and has always been) entitled to payments. His claim as calculated in the millions, and was originally premised on the basis that, if successful, the claimant should be entitled to payments until the statutory age of retirement.
The defendant’s primary case is that the claim is fraudulent. The defendant asserts that fraud is the only explanation for the discrepancy between the claimant’s account of his illness in representations made to the defendant — depicting a life largely consigned to home, and mostly devoid of meaningful social interactions and physical activity — and the objective evidence, which includes covert surveillance and evidence of the claimant’s spending, and depicts (amongst other things) the claimant attending beer festivals and drinking beer for hours on end, cycling several miles at a time and taking numerous national and international holidays, including an annual skiing holiday.
The defendant also has an alternative case: even if the claimant was innocent in his representations as to the state of his illness, on the proper construction of the policy he is not entitled to any payments because he has failed to disclose material facts as to his functionality and his true financial situation at the time he was receiving payments. The defendant asserts that, as a matter of law, even if the claimant’s nondisclosures were entirely innocent, they were still failures to disclose “material facts” (a defined term in the contract) and therefore operate to void the policy.
The trial commenced on March 13, 2017. Over the period of two weeks, evidence was heard from the claimant, his friends and family, medical assessors engaged by the defendant, and medical experts on both sides.
At the end of those two weeks, Turner J invited further submissions on the legal argument which makes up the defendant’s alternative case. The parties duly prepared written submissions on the point, and asked the Judge for an indication as to which aspects of these he would wish to focus on at a further oral hearing.
Sometime after these submissions were filed and served, Turner J emailed the parties’ representatives. His Lordship’s email included references to authorities and commentary which the judge had found following independent legal research, and which had not been raised by either party. On one analysis, these authorities and pieces of commentary would appear to support the claimant’s case (though the defendant denies that this is the proper analysis). The judge also asked counsel for the defendant to clarify where in its pleading the defendant’s alternative argument was set out.
The defendant concluded that, having read this email, a fair-minded observer would conclude there was a real possibility that the judge was biased, and had already determined the issue of fraud in the claimant’s favor, hence why his Lordship was concentrating on this alternative argument, which would not need to be considered if fraud was established.
By a set of written submissions filed shortly before the further oral hearing on June 26, 2017, the defendant set out its case on judicial bias, and invited Turner J to recuse himself. Those submissions were developed in the hearing itself.
By a judgment handed down on June 27, 2017, Turner J dismissed the application, and gave the following guidance on the issue of judicial bias, which may be of general assistance to practitioners:
- An application for recusal must be made in the same form as any other application (CPR 23): namely, by way of an application notice with supporting evidence, to be served no later than three days before the hearing. Whilst the court has discretion to dispense with the requirement for an application notice (CPR 23.3(2)(b)), this is not something to which an applicant is entitled as of right (see paragraph 25 of the judgment).
- An application for recusal should be made as soon as possible, since Practice Direction 23A 2.7 provides that: “Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.” Whilst Turner J did not decide the application on the following basis, his Lordship concluded that a court would be entitled to exclude a recusal application from consideration purely because of procedural defects (see paragraph 23)
- As to substance, the test for bias remains whether a fair-minded observer would conclude there was a real possibility that the judge was biased (the seminal case is Porter v Magill  2 AC 357). Turner J emphasized that the fair-minded observer is one who approaches the issue of bias objectively and not from the point of view of the complainant (paragraphs 21 and 38).
- A judge is entitled to conduct independent legal research, and to raise a point not raised by any party. However, the judge acknowledged that there are limits to “judicial curiosity”, and referred to a speech by Lord Neuberger in which the President of the Supreme Court noted that, “a judge must be very careful of being prejudiced in favour of a point just because he raised it and the parties missed it.” (paragraphs 32 to 33)
- It will be difficult successfully to allege bias where the full evidence has been heard. Turner J appeared to suggest that the essence of bias was a judge having “pre-determined” an issue before the full evidence had been heard. Where the evidence had been heard, Turner J appeared to suggest that “pre-determination” was by definition impossible: “I take the view that neither side could have complained of apparent bias even if I had informed the parties in the email that I had actually decided what the claimant’s state of mind was. Where a complaint is made that a judge has “pre-determined” an issue, the question must arise: “Pre what? What further evidence or submissions ought the judge to have waited to hear before proceeding to determination?” The answer in this case must be: “None”.” (paragraph 39)
The judgment is useful, in that it addresses in detail the practicalities of making a recusal application. Practitioners contemplating making such an application should, of course, exercise caution, and take into account the points raised by Turner J.
Having dismissed the application, Turner J went on to hear further submissions on the defendant’s alternative case.
Judgment on the underlying claim is awaited. It is hoped that this judgment will provide useful guidance to practitioners dealing with allegations of fraud at the highest level.
2 Temple Gardens
This article was originally published in Law360, and can be accessed here behind a paywall.