- When recusal is deemed appropriate
- Consequences of failing to make an application for recusal
Should judges recuse themselves if they practise in the same chambers as a barrister in the case? No, according to the Court of Appeal in Vanderbilt v Azumi and others  EWCA Civ 2133. However, such cases are fact-sensitive. Certain factors can make recusal appropriate.
Vanderbilt arose from a trademark dispute between a pet food vendor and a Japanese restaurant chain over the use of the name 'Zuma'.
During proceedings in the Intellectual Property Enterprise Court (IPEC), Ms Vanderbilt, who did not have legal representation and was against both a silk and a junior instructed by solicitors, asked Recorder Campbell QC to recuse himself from deciding her summary judgment application on the grounds that he was a practising barrister in the same chambers as the lead barrister representing the respondents' Japanese restaurant chain. The judge fully disclosed this connection at the outset of the hearing and Ms Vanderbilt had already discovered it prior to the judge’s disclosure, although she was not informed by the other side.
Ms Vanderbilt argued that there was a real possibility of bias due to the close business relationship between the judge and the barrister. A further complicating factor was that Ms Vanderbilt had raised allegations of serious misconduct against the barrister, amongst others. Those allegations had been dismissed by a different judge and were based on misunderstandings of court procedure.
Recorder Campbell QC concluded that he did not have to recuse himself. In doing so he applied the well-established test in Porter v Magill  UKHL 67, namely:
- ascertain all the relevant circumstances; and,
- in light of the facts, ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias.
This is supplemented by the rider in Watts v Watts  EWCA Civ 1297: that the fair-minded and informed observer ‘would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges’ and be aware of the stringent ethical standards they must adhere to.
Court of Appeal decision
Ms Vanderbilt appealed against Recorder Campbell QC’s decision to the Court of Appeal. In the process, she made a further application asking Lord Justice Floyd to recuse himself on the basis that he had refused her permission to appeal against the outcome of her trial (which she had partly won and partly lost).
Lord Justice Floyd declined to recuse himself, explaining in the judgment that: . ‘...The mere fact that a judge has decided applications or issues in the past adversely to a litigant is not generally a reason for that judge to recuse himself at further hearings...The fair-minded and informed observer does not assume that because a judge has taken an adverse view of a previous application or applications, that he or she will have pre-judged, or will not deal fairly with, all future applications by the same litigant.
 ‘The position might well be different if in the past the judge has expressed a final, concluded view on the same issue as arises in the application.’
That was not the case here as the issues Floyd LJ decided at the permission stage were different to the issues raised by MsVanderbilt's appeal on the recusal grounds.
The court dismissed Ms Vanderbilt's appeal, and, in the process, made some overall comments of particular relevance to civil litigation practice (at ). In summary, the court found there was no rule that required a judge to recuse themselves because they are in the same chambers as a barrister who has been accused of misconduct. However, each case had to be fact-sensitive.
Where, for example, the barrister is acting on a Conditional Fee Agreement, it may be inappropriate for a judge in the same chambers to decide the case to avoid the risk that the judge may appear to have a financial interest in the outcome (see Smith v Kvaerner Cementation Construction Ltd (General Council of the Bar intervening)  EWCA Civ 242 at ).
Recusal may also be appropriate where a judge, as part of their fact-finding exercise, is required to determine allegations of fraud or criminal activity that are made against legal representatives with whom the judge has a professional business connection.
A question left open by the court is whether legal representatives are under any ethical or procedural duty to disclose past or present professional business connections with judges to their opponents, particularly, to a litigant-in-person.
Arguably so, given that the judge at first instance expressed 'concern' at the lack of disclosure from the respondents (see § 21). Legal representatives may be under a procedural (if not an ethical) duty to give their opponents ‘sufficient notice’ of any such connections with presiding judge/s, if only so that opponents can consider making recusal applications in good time and to avoid anyone being taken by surprise by disclosure on the day of a hearing.
That seems fair, especially given that the failure to make an application for recusal can be held against a party seeking to appeal a judgment on the grounds of bias (see  of Singh v Secretary of State or the Home Department  EWCA Civ 492).
Post-Vanderbilt, Ben Amunwa examines where the lines are when it comes to recusal