APPLICATIONS TO RECUSE HAVE NO SPECIAL STATUS AND SHOULD BE MADE PROPERLY AND PROMPTLY
In Miley -v- Friends Life Limited  EWHC 1583 (QB) Mr Justice Turner made some important applications in relation to applications that a judge recuse themselves.
The action concerned the question of whether the defendant should continue paying money under an income protection insurance policy. The defendant took a point, during the trial, in relation to the claimant’s income. This had not been pleaded or mentioned in the defendant’s skeleton argument. It was agreed that further oral submissions were necessary. The defendant’s counsel asked the judge for some indication of the broad areas or issues where the court would appreciate further argument.
On the 11th April 2017 the judge responded with some general points and also
“I would like, please, also to be reminded of the paragraphs of the defendant’s defence and counterclaim which are relied upon as the pleaded basis for the advancement of the non-disclosure argument in the context of the FRF return.”
The hearing for further submissions was heard on the 26th June 2017.
THE APPLICATION TO RECUSE
THE RECUSAL APPLICATION
- By “Further Closing Submissions” dated 21 June 2017, but not sent to the court until the following day, the defendant, for the first time, invited the court to recuse itself on the ground of apparent bias.
THE JUDGE’S OBSERVATIONS ON THE APPLICATION
“SOME PRELIMINARY POINTS
At the risk of stating the obvious, any judge who is invited to recuse himself on the ground of apparent bias must be very careful not to allow any personal considerations whatsoever to contaminate his conclusions. Nevertheless, this should not preclude such a judge from acting with the same level of robustness and proportionate scepticism, where this is necessary, as he would approach any other application. To proceed otherwise would be unfairly to prejudice the other side out of an undue sensitivity to the perception that such robustness may be wrongly attributed to the personal feelings of the judge as opposed to the legitimate demands of firm management with the aim of applying the overriding objective.
With this in mind, I am bound to pass adverse comment on the timing of this application. The emails the contents of which have prompted this application were sent as long ago as 11 April 2017. It should not be necessary to remind the defendant’s’ legal team and their client that CPR Part 1.3 imposes a duty on the parties to help the court to further the overriding objective. I asked Ms Harrison for an explanation for the delay and I found her response to be as unhelpful as it was uninformative. It is to be noted also that 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.”
As a result of the timing of the application, the claimant’s response was sent to me just after 4pm 25 June, which was the Sunday before the Monday upon which the matter had been listed for hearing. The combined content of the new written submissions extended to in excess of forty pages and a hundred paragraphs. An exercise which was intended to assist the court predictably ended up in a wholly avoidable attempt at procedural damage limitation.
I inquired why the application did not comply with the formalities of CPR 23. The answer was unsatisfactory and appeared to be based on the assertion that there have been other cases in which the application for recusal had not been made on a formal basis. However, CPR 23.3(1) imposes a general rule that the applicant must file an application notice. The court may dispense with an application notice under (2)(b) but this is an act of discretion and not one of generic entitlement.
In the event, I made an order dispensing with the requirement of such an application, not because it would have been inappropriate for such an application to have been made in the first place but because, by the time the matter came before me, the waste of time and money which would have been occasioned by further delay far outweighed the benefits of insisting on proper procedural discipline.
It would also have been open to the court to exclude the issue from consideration by reason of the inordinate and inexcusable delay in raising the point. Parties should not simply assume that in all cases an application for recusal will automatically be immune from procedural objection as a result of delay. As Jacobs L.J. observed in Baker v Quantum Clothing Group  EWCA Civ 566:
“35 …Weightmans say they only discovered certain of the matters relied upon two weeks after the hearing. We have unchallenged evidence from Mr Fry of Wake Smith leading to the clear inference that Mr Byard of Weightmans had visited the BTA website during the hearing. Even accepting that the matters concerned were only found two weeks later, there is no explanation of why they were not found earlier. Further, it is astonishing that, having found the material, the applicants took no action for a further five weeks. We draw the inference from this delay that the matters now relied on were not, at the time of discovery, seen as serious.
36 Finally, we think that this objection simply comes too late. It is 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 is practicable.”
THE RESULT: APPLICATION TO RECUSE REFUSED
The judge succinctly, but firmly, refused the defendant’s application. The whole section of the judgment makes interesting reading. It includes advice to a party thinking of making an application.
Finally, there is no reason why, if the defendant were wrongly but genuinely concerned that my email concealed a darker purpose, to seek clarification from me as to the reason behind my request and, perhaps, a reassurance that I was not minded to limit the scope of the defendant’s case with reference to its pleadings. Had such a request been made I would gladly have put the defendant’s mind at rest.