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Bias and judicial recusal

It has been a while since I’ve looked at issues relating to bias and judicial recusal. This is partly because, until recently, we had lots of adjudication-related things to write about (although Jonathan does seem to have put the kibosh on that one). However, it seems these issues are still ripe for consideration in court proceedings, as the three cases that follow testify.

I find it interesting how far parties are prepared to go when running arguments related to bias.

Resolution Chemicals Limited v H Lundbeck A/S

For example, at the end of 2013, in Resolution Chemicals Limited v H Lundbeck A/Sa patents judge, Arnold J, was asked to recuse himself on the grounds of apparent bias. It seems that 30 years previously, the claimant’s expert, Professor Sir Jack Baldwin, had supervised one of the judge’s research projects as part of his degree course while at Magdalen College, Oxford. The expert’s evidence was that he had no specific recollection of the judge. I’d say that after 30 years, that is hardly surprising!

While Arnold J acknowledged that he was uncomfortable hearing the recusal application, that is the way recusal applications go. It’s just the same when an adjudicator is asked to resign. We sit in judgment on ourselves, hoping that we make the right decision (although, in my experience, parties aren’t shy at telling you when they think you haven’t got it right!).

In this case, Arnold J noted that it was suggested that his past association with the Professor led to the possibility that there would be subconscious bias in his assessment of the Professor’s evidence. However, when looking at the matter in the round and applying the objective test of whether a fair minded observer, having considered all the facts, would conclude that there was a real possibility that the tribunal was biased (Porter v Magill), he concluded there was no risk.

Some of the factors he highlighted are directly relevant to construction law, which undoubtedly has many parallels with the intricacies of patent law. For example:

  • “…the application of a sophisticated body of law to highly technical facts.”
  • A specialist field where “many of the participants are known to each other”.
  • “I am well acquainted with most of the barristers, and many of the solicitors, who conduct litigation in the Patents Court.”
  • “It is not uncommon for expert witnesses to act in more than one case. I have already had the experience of assessing the evidence of an expert who had given evidence in a previous case before me.”

Unsurprisingly, the Court of Appeal upheld Arnold J’s judgment on recusal.

Analogy with adjudication

The nearest analogy in adjudication that I could think of was Fileturn Ltd v Royal Garden Hotel Ltd, where it was argued that there was a pre-existing relationship between the adjudicator, Mr Sliwinski, and Fileturn’s representative in the adjudication because the adjudicator had been a director of Alway Associates between March 2001 and February 2004, some six years earlier.

Edwards-Stuart J held that an informed and fair-minded observer would not conclude that the adjudicator was biased. He also noted that there had been no significant contact since the adjudicator left Alway Associates in March 2004 and that he had no continuing financial or other interest in that business.

Otkritie International Investment Management v Urumov

However, it seems that judges don’t always make the right decision when it comes to recusal, as the Court of Appeal demonstrated in Otkritie International Investment Management v Urumovwhen it overturned the judge’s decision to recuse himself.

Eder J in the Commercial Court had recused himself between the main proceedings (where he had written a 559 paragraph judgment) and an application for permission to institute committal proceedings. In the main proceedings, he had found that certain defendants had conspired to and actually defrauded the claimants. Mr Urumov was held to be personally liable for US$23 million for one fraud and US$150 million for another.

Eye watering sums of money indeed, so it probably wasn’t a surprise that Mr Urumov made a recusal application alleging apparent and actual bias, and suggesting (among other things) that the judge had already decided the committal application against him.

Eder J dismissed the imputed bias grounds but he allowed the recusal application because, although he considered the grounds of actual bias to be “entirely groundless”, the allegations were so serious that the appropriate course was to recuse himself. He also gave the claimant permission to appeal, saying that it had a real prospect of success and he would welcome his decision being overturned.

In the Court of Appeal, Longmore LJ referred to Porter v Magill and reiterated that the concept of bias:

  • Includes any personal interest in the case or friendship with the participants.
  • Extends to any real possibility that a judge would approach a case with a closed mind or might in some way have “pre-judged” the case.

The Court of Appeal noted that there was no real ground for doubt about the judge’s objectivity, and there was no appearance of bias or pre-judgment by him. It followed that he should not have recused himself.

Analogy with adjudication

Interestingly, the court also emphasised that in long and complex cases, judges should not recuse themselves too readily. One could say the same thing about multiple adjudications arising out of the same project. Parties should not underestimate the convenience and costs saving of having a single adjudicator appointed in each of those disputes. It may also result in continuity of outcomes, something that doesn’t always happen when the identity of the adjudicator changes (although that may be precisely what the referring party wants).

Jackson v Thompsons Solicitors

Finally, a case where one party had private correspondence with the judge.

In Jackson v Thompsons Solicitors (A Firm) and others, the claimant alleged that the defendants has taken steps to ensure a hearing for a group litigation order (GLO) would be heard by Sir Michael Turner, who was the judge in charge of one of the coal board’s compensation schemes. The claimant alleged that Sir Michael was biased against it because he had lost his objectivity: he was so involved in the management of the compensation scheme that he viewed the GLO application as a threat and failed to deal with it on its merits. The judge had “a closed mind that was not susceptible to persuasion”.

Simon J’s detailed judgment runs to some 400 paragraphs but, in a nutshell, it seems that there had been some correspondence between Sir Michael and Thompsons and it was this that gave rise to the bias allegation. However, Simon J rejected the bias allegations. In doing so, he noted that the judge’s communications with one party appeared “odd”. He also cautioned against “private communications” because of the perception that:

“…it suggested that one party was telling the Judge something that it did not want the other side in the litigation to know.”

He went on:

“Even private communications which are thought to be essential in the overall interests of justice have their dangers in terms of perception: a matter which is well understood in the criminal and public law fields.”

Analogy with adjudication

If this judgment has got bells ringing, a recent and direct comparable from the world of adjudication is Paice v MJ Harding, where the referring party rang the adjudicator’s office and had a chat with the office manager.

Coulson J refused to enforce the adjudicator’s decision, finding that the adjudicator’s failure to disclose his knowledge of the claimants’ telephone call to his office two months before the adjudication gave rise to the possibility of bias:

“It seems to me that a fair-minded observer would conclude that it was inappropriate for a decision-maker who knows about, and fails to disclose, a material but unilateral conversation, subsequently to say that it was not disclosable because it had taken place with his practice manager/wife, not him personally. That might be regarded as the sort of artificial distinction beloved of lawyers, but not a proper approach to the business of decision-making.”

Who should be the judge (or adjudicator)?

As a final point from Jackson v Thompsons, Simon J expressed a clear view about parties seeking to influence the court’s listing office about who will hear a case:

“Those involved in litigation should not seek to influence a decision as to the identity of the judge who will hear their case… Suggestions by parties as to the identity of the judge who should hear their case should not be made, and are likely to be treated as unwelcome.”

Eurocom v Siemens, a case about adjudicator nomination, immediately springs to mind here.

In Eurocom v Siemens, Ramsey J held that Siemens had established a sufficiently strong case that the adjudicator’s nomination was invalid and therefore he was not properly appointed because “there was a fraudulent misrepresentation by those acting on behalf of Eurocom in making the application for the appointment of an adjudicator”.

MCMS Ltd Matt Molloy

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