DISTRICT JUDGE SHOULD NOT HAVE “PARTIALLY” RECUSED THEMSELVES: THINGS THAT SHOULD NEVER HAVE BEEN IN A WITNESS STATEMENT: A VERY INTERESTING ASSESSMENT OF COSTS…

I am grateful to Simon Fisher from DWF for providing me a copy of the judgment in Akers -v- Kirlkland [2019] EWHC 2176 (QB) Mr Justice Waksman discussed, in detail, the circumstances in which a judge should recuse themselves and whether it is possible for there to be a partial recusal.  In addition to the issue in relation to costs, the case is also interesting (if not intriguing) because of the comments made in the claimant’s solicitors statement about the views he had canvassed from a retired District Judge.  It is an example of material that should never be placed in a witness statement.

A copy of the judgment is available here. Akers Ors Judgment (1)

” experienced solicitors should know better than to attempt to support an application of this kind by seeking the opinion of a retired judge, as if that could or should somehow influence the judge who is the subject of the recusal application”

THE FACTS

The court was assessing costs in a large case involving the collapse of a block of flats and claims brought by 41 individuals.   Counsel who had acted for the claimants in that case had subsequently been appointed as a District Judge.  When the matter came to assessment the District Judge who was assessing the costs pointed out that the Judge whose costs were to be assessed sat in a neighbouring court and was well known to him. The issue of assessment of the claimant’s counsel’s fees and additional liabilities was, therefore, transferred to another District Judge.  The claimants made an application that the entire costs be assessed by another costs judge.

The claimant appealed, arguing that the District Judge should have recused themselves from the entire assessment, which should be started afresh.  The defendant appealed on the basis that the District Judge should never have recused themselves.

THE JUDGMENT ON APPEAL:  RECUSAL IS NOT A MATTER OF DISCRETION

The judgment of Mr Justice Waksman  considers, in some detail, the principles by which a judge should recuse themselves.

44. Next, and as already noted, the assessment as to whether there should be a recusal
for apparent bias is not a matter for the discretion of the judge. Either there should be
recusal based on an application of the fair minded observer test, or there should not; see
paragraph 20 of the judgment in AWG. And if there was such a case, then recusal cannot
be avoided by saying that it would cause inconvenience in the trial process. The
importance of the trial being seen to be fair takes precedence. That said of course, whether
in any given case there should be a recusal, is highly fact-sensitive and is a question of
fact and degree. Further, the fair minded observer is not to be “unduly sensitive or
suspicious.” See paragraph 14 of the judgment of Lord Rodger in the House of Lords case
of Helow v SSHD [2008], UKHL, 62.
45. Put another way, judicial discomfort at continuing with the case is not the test. As
Chadwick LJ put it, in Triodos v Dobbs, at paragraph 7:
“It is important for a judge to resist the temptation to recuse himself,
simply because it would be more comfortable to do so. If judges
recused themselves whenever a litigant criticised them, we would soon
reach the position where litigants were able to select judges to hear
their cases, simply by criticising all the judges they did not want to hear

56. One should consider first what the position here would have been, had one been
starting with a blank piece of paper as it were. Had, for example, the defendant here,
applied at the outset for the district judge to recuse himself, at least in connection with the
assessment of Ms Hennessy’s fees, on the basis she was now a judicial colleague of his,
working nearby, I would have found it very hard indeed, to see how recusal would have
been warranted on the ground of apparent bias. The district judge had no direct or indirect
interest in the amount of counsel’s fees allowed, nor were they so close socially, or on
other
personal terms that a fair minded observer might think there was a risk of the judge being
too generous over the question of fees, for fear of disturbing their friendship, for example.
57.
58. Indeed, the district judge accepted that if the amount of the fees claimed had been
small, it would not have been a problem, rather it was the amount in issue. But I do not
see that as a relevant distinguishing factor here. It is not unknown for judges to have to
deal with costs of solicitors or barristers, who have now gone on to the bench. The fair
minded observer would surely expect both parties to act professionally in the sense that
the costs judge would assess in the normal way, without regard to the identity of the
lawyer involved. And the lawyer involved, now a judge, would not objectively be
expected to castigate the costs judge in some way, if he or she felt that in the event, too
little was allowed.
59. It follows that in my judgment, the district judge was oversensitive about his
position, no doubt acting out of an excess of caution. But in my view, if he had any initial
concerns, then he was required to do no more than to refer to the fact, which was known
in any event to the claimant, that Ms Hennessy had now become a district judge, and the
details of which, may not have been so apparent that she was no more than a judicial
colleague working nearby. He should then simply have asked the parties whether they had
any objection to him dealing with her fees. I would be very surprised, had this been done

in this way at the outset, if the claimant then would have objected. And we know the
defendant, the party most likely to be affected, would not have objected. There the matter
would have rested, and the entire assessment would have been dealt with by the district
judge.

JUDICIAL DISCOMFORT DOES NOT MEAN APPARENT BIAS

Mr Justice Waksman stated

61. In my judgment, there was in fact, no case for the district judge to have recused
himself at all, even to the extent of the assessment of counsel’s fees. This was a case, in
truth, of no more than some judicial discomfort, but which falls well short of establishing
apparent bias. The very fact that it took some considerable prompting by the judge before
the claimant belatedly applied to recuse him, and in circumstances where the party most
affected – the defendant – never took the point, is some evidence of that. It follows that the
district judge did not, in my view, need to dwell on the matter further as in fact, he did,
following the October hearing and setting out his views in paragraphs 36 and 37 of the
draft judgment. And it would have been much wiser, not to have repeated those concerns
in formally, to Mr Pilling. But since he did, and since now the whole question of the
district judge’s assessment of counsel’s fees has become so elevated in this appeal, and
because the district judge, though unnecessarily, has obviously become concerned at
having to deal with them, the better course is still to hive off that part of the costs

assessment to another costs judge, unless that is in any way unfair or impractical, matters
with which, I deal below.

THIS WAS A PRAGMATIC SOLUTION

62. The decision I make here to uphold the partial recusal, is therefore made as a
proportionate and appropriate case management decision, not as an application of the rules
of apparent bias. I do not believe that this will encourage judges to be oversensitive; it is
simply a response to the very unusual facts of this case. I now turn to the appeal and the
claimants’ claim that there should be entire recusal. The first point is obvious: since I have
found there was no case for any recusal, it must necessarily follow that there is no case for
any wider recusal.

NO BASIS FOR FULL RECUSAL

Mr Justice Waksman went on.

There is, in my view, no basis for saying that his handling of the rest of the costs
assessment is tainted by apparent bias. I reject the notion that the fair minded observer
would conclude there was a risk of the district judge being less favourable to the claimant
as some kind of compensation for any perception he might be less favourable to the
defendant on counsel’s fees. He was right to reject that argument for the reasons he gave.
In any event, any possible perceived risk disappears, once it is to be remembered that he
will now not be assessing counsel’s fees anyway, so far as matters in the future are
concerned. To that extent, there will be nothing notionally for him to compensate against.
There is, in my view, no other basis for recusing the district judge from the rest of the
assessment. Indeed, in respect of the assessment he has already done, and which the
claimant would wish to have discharged on the basis of apparent bias, the claimants have
not pointed to any respect in which any part of the written judgment, or indeed the
extemporary judgments given in October, suggest that the district judge must, or even
may, have been guilty of apparent bias.

SOLICITORS MAKING STATEMENTS – CAUSING “ISSUES” AGAIN

One intriguing aspect of the case is the fact that the claimant’s solicitor made a statement. This stated that he had discussed the case with a retired district judge who had stated that “he was quite adamant, it was clearly a matter for recusal without any doubt”.

The District Judge hearing the assessment was critical of this statement.   That concern was then used by the claimant as an argument in support of recusal.

“During the course of initial discourse with Mr Pilling today, I express
concern at this. I invited him to identify the retired district judge
concerned, which Mr Makin declined to do. To my mind, it is utterly
inappropriate to seek to pray in aid of such an application, the opinion
of an unidentified retired member of the judiciary. Aside from the
irrelevance of that opinion, it is to my mind, unprofessional and I said
so during the hearing, and I stand by that position. However, it seems to
me to be entirely unrealistic to suggest that the fair minded observer to
whom reference had been made frequently within this judgment, would
take the view that a judge would express such an opinion on the distinct
issue during the course of a hearing as this, might now be seen to be at
risk of apparent or actual bias in then approaching the balance of this
detailed assessment in any way other than it would otherwise have been
approached, I reject therefore, the application to recuse myself on the
basis of that criticism made today

ON APPEAL

Mr Justice Waksman was equally critical:-

66. I agree with the district judge that the making of such a statement was
inappropriate. I also think he was entitled to use the word unprofessional, in the sense that
experienced solicitors should know better than to attempt to support an application of this
kind by seeking the opinion of a retired judge, as if that could or should somehow
influence the judge who is the subject of the recusal application. Moreover, frankly it
would have been better if the retired district judge had declined to express any view,
although of course, I do not know in precisely what terms his opinion was sought, save
that it appears to have been done on a hypothetical basis. When the judge makes reference
to “unprofessional”, I agree that that is not to indicate any particular item of professional
misconduct, and the judge made that clear, see page 29 of the transcript of the hearing of 6
February itself.

67. I do not agree with paragraphs 26 to 31 of Mr Pilling’s written submissions to the
effect that this incident amounts to evidence of personal animosity by the judge, towards

he claimants’ firm of solicitors. Indeed, and again, if personal animosity is now advanced
as a separate ground in relation to this matter, it was not put in this way, or certainly not as
high previously. In any event, for the reasons that I have given and will give, there is
nothing in the point. There is a suggestion in the written submissions that what in fact,
was done by the claimants’ solicitors in making that statement, was really the same as
what was recommended in the guide to judicial conduct. But what the guide to judicial
conduct says is this, is that insofar as the judge whose recusal is being sought, reliance
must be placed on the judgment of that judge and his or her judicial instincts and
conferring with a colleague where possible and appropriate. That is completely different
from a party seeking the opinion of a retired judge, and putting it forward to support a
case of recusal. So I am afraid that the reference to the guide is completely irrelevant.

Further, and all of that said, this was an isolated incident in the overall recusal
application. And while the district judge was perfectly entitled to comment, as he did, it
hardly follows that he must be guilty of apparent bias. No fair minded observer would so
conclude. If it were otherwise, it would follow that every time a judge has cause to
comment critically on one aspect of the conduct of a party’s solicitors, he would then have
to recuse himself. Sometimes, the making of such observations are part and parcel of
dealing with litigation, especially on questions of costs orders. Assuming that is, that there
was a proper basis for those remarks, as there was here. Accordingly, the district judge
was right to reject this as an additional ground for recusal and I do so too. Equally, in my

judgment, there is no basis for any complaint against District Judge Jenkinson in this
regard, or any reason at all, why he should not deal in the future, with other cases
including involving the claimants’ solicitors, should he be allocated to them.

CAN THERE BE A “PARTIAL RECUSAL”

74. For the avoidance of doubt, I should briefly deal with the question whether there
can be a “partial recusal”. This has occurred here, though in fact, as a matter of case
management in the light of the history of this matter, not because the district judge
actually needed to recuse himself at all. It is not appropriate to lay down any general rule,
because in my view, circumstances where partial recusal will arise, are likely to be rare. It
has happened where the trial judge, a deputy, after the trial recused himself from the costs
assessment because he was regularly instructed by the firm whose costs and hourly rates
were being assessed, and whose hourly rate, he as counsel might have to justify on another
occasion, that is the case of Amey. Accordingly, having done the trial, he did not assess
the costs but that is obviously different from this case, and nor does it add any support for
the claimants’ case on recusal here.

75. It seems to me that each case must be examined by reference to its own facts, and
if the issue of recusal is really highly confined, it may follow that the judge can recuse
himself from the relevant part, but not other parts. Beyond that, it is not necessary for me
to go, save that I see nothing unlawful about taking that course and the course which the
court has decided to take here