21 December 2017Print This Post

Appeal judges reject recusal demands by litigant-in-person

Judges: Should not entertain private correspondence from parties

The Court of Appeal has rejected recusal demands from a litigant-in-person, who argued that not only should a recorder hearing her case have recused himself but the lord justice who heard her appeal should do the same.

Lord Justice Floyd rejected pet product entrepreneur Zoe Vanderbilt’s application that he should recuse himself on the grounds that he had refused previous applications for leave to appeal and to reopen her appeal.

Floyd LJ said that if a judge who decided issues adversely to a litigant had to recuse himself at further hearings, the same judge could not make successive interim decisions without risking accusations of bias.

“It would make it impossible for there to be a designated judge assigned to the hearing of complex cases with multiple interim applications.

“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.”

Ms Vanderbilt, who represented herself at the Court of Appeal assisted by a McKenzie Friend, was appealing against a decision by Recorder Campbell QC not to recuse himself from hearing an application in the Intellectual Property Enterprise Court.

She argued that Recorder Campbell should have recused himself because he was a practising barrister in the same chambers as counsel for the respondents.

Ms Vanderbilt also complained that a “private and confidential” letter which she alleged was wrongly included in the bundles before the court “created a situation in which a perception of apparent bias was inevitable”.

The court heard in Zuma’s Choice Pet Products v Azumi and others [2017] EWCA Civ 2133 that Ms Vanderbilt sent a “letter or statement” to His Honour Judge Hacon – who had first heard the substantive application – in January this year, “containing allegations in connection with the handling of the case”.

The allegations were made against the defendant’s counsel and solicitor, as well as the judge’s clerk. The statement was sent in an envelope marked “private and confidential”.

Floyd LJ said: “If it is possible to do so, a judge who receives such a communication should return it unread, explaining shortly to the litigant the impropriety of sending unilateral correspondence. That, of course, may not always be possible.”

HHJ Hacon read Ms Vanderbilt’s “material”, and responded with a ‘judge’s note’, making it clear that he saw “no basis whatsoever for any wrongdoing” by his clerk or the lawyers.

HHJ Hacon directed that Mr Vanderbilt’s applications should be heard by a different judge, preferably HHJ Melissa Clarke, who would be hearing the trial. However, the applications were listed before Recorder Campbell QC.

Ms Vanderbilt objected, arguing that HHJ Hacon should hear them because he was familiar with the case, and making further allegations against his clerk, resulting in a direction that the clerk’s line manager would handle any future dealings with her.

Later, when Ms Vanderbilt discovered that Recorder Campbell was in the same chambers as the defendant’s counsel, she asked him to recuse himself, a request the recorder rejected.

Floyd LJ said: “I would be extremely reluctant to lay down a general rule that a judge from the same chambers as the advocate should always recuse himself from a case where the advocate has been accused of some form of conduct of which the litigant complains.

“That would provide the easiest of routes for a litigant to disrupt the listing of cases before deputy judges in specialist areas such as intellectual property and TCC work, where deputy judges are frequently chosen from amongst the small cadre of specialists in the field.

“It is, unfortunately, a common occurrence that litigants make accusations against their opponents and their representatives which turn out on examination to be unfounded or based on misconceptions about law or procedure.”

Floyd LJ said recusal issues were “acutely fact sensitive” and it was not difficult to think of cases on the other side of the line.

“In the present case the fair-minded observer would know and understand that the allegations in question had been the subject of careful judicial scrutiny and rejected.

“The idea that in those circumstances the fair-minded observer would think the judge in some way pre-disposed against the maker of the allegations because of his chambers association with the accused advocate is, I think, an unreasonable one.”

He dismissed Ms Vanderbilt’s appeal. Lord Justice Patten agreed.

By Nick Hilborne

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One Response to “Appeal judges reject recusal demands by litigant-in-person”

  1. Biased Judges who conspire with their number in chambers, to scupper litigants in person who aren’t discouraged or intimidated by them? Oh that’s impossible isn’t it!!!!! Not

  2. Mr Teetotal on January 3rd, 2018 at 5:01 pm

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