Yvonne Ameyaw v Christina McGoldrick
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 06 July 2020 |
| Neutral Citation | [2020] EWHC 1787 (QB) |
| Date | 06 July 2020 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2020-000089 |
[2020] EWHC 1787 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Steyn DBE
Case No: QB-2020-000089
The Claimant represented herself
Rupert Paines (instructed by Fladgate LLP) for the Defendants
Judgment without a hearing pursuant to CPR 23.8(b)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Steyn DBE
A. Introduction
This judgment addresses an application for me to recuse myself (“the recusal application”) from dealing with the Defendants' application dated 30 March 2020 (“the Defendants' application”). The recusal application was made by the Claimant by email on 2 July 2020 at 11.25. I received written submissions in response from the Defendants' representatives at 17.14 on 2 July 2020.
In accordance with my order of 3 July 2020, and for the reasons attached to my Order, this application is being determined without a hearing, with the agreement of both parties, in accordance with CPR 23.8(b).
B. The Claimant's grounds
As I read them, the Claimant's submissions raise two matters which she submits give rise to an appearance of bias:
i) My professional relationship with the Defendants' Counsel, Mr Paines; and
ii) The way in which I dealt with the hearing on 1 July 2020 and the fact that I am now the subject of a complaint made by the Claimant's mother in respect of the hearing on 1 July 2020.
It is clear from the Defendants' submissions that they have understood the Claimant's application to be based solely on the first of these points, and so that is the only ground addressed in their submissions. It seems to me from the first paragraph of the Claimant's submissions that she is also relying on the points which I have sought to elucidate as ground (ii), albeit the focus of the remainder of the Claimant's written submissions is on ground (i). Accordingly, I address both grounds below.
C. The legal principles
The Claimant has a right to a fair hearing before an impartial court. It is of fundamental importance that judicial decisions should be made free from bias or partiality. It has long been recognised that justice must not only be done, it must also be seen to be done: see R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256.
The authorities draw a distinction between actual bias and apparent bias. Most cases dealing with bias are argued and decided on the basis of apparent bias. As I have said, this case is no exception: no allegation of actual bias has been made.
In In re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700, [2001] ICR 564, Lord Phillips MR (giving the judgment of the court) observed at [37]:
“Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve.”
The approach, and the test to be applied, in considering the recusal application is as follows:
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
See In re Medicaments (No.2) per Lord Phillips MR at [85] and the endorsement of this passage by the House of Lords in Porter v Magill [2002] 2 AC 357, per Lord Hope (with whom all members of the Judicial Committee agreed) at [102]–[103].
It is, therefore, clear that:
i) The matter is to be judged from the perspective of the fair-minded and informed observer; and
ii) The threshold is a “real possibility”.
In Lawal v Northern Spirit Ltd [2003] UKHL 35, Lord Steyn (giving the opinion of the Judicial Committee) observed at [14]:
“Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53, by Kirby J when he stated that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”
The characteristics of the notional fair-minded and informed observer were described in more detail by Lord Hope in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416:
“2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
3. Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”
In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C observed in a joint judgment of the court at [25]:
“It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances…; or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers … By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind …; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. 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 more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.”
In Taylor v Lawrence [2003] QB 528, Lord Woolf CJ (giving the judgment of court) addressed a contention that an appearance of bias arose from the judge's professional relationship with the solicitors for one...
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