Arguments over “apparent bias” in judges should be based on the view of a “fair-minded and informed observer” and not the feelings of clients, Lord Justice Burnett has said.
Burnett LJ, who takes over as Lord Chief Justice in October, told the Court of Appeal: “The party who seeks to bounce a judge from a case may be fair-minded and informed but may very well lack objectivity.
“There are others (I emphasise not this case) who cynically seek to manipulate the composition of the court for perceived advantage.
“It was striking that Mr Berkley QC frequently referred to the feelings of his client when developing submissions on apparent bias rather than focussing on the fair-minded and informed observer. One respects those feelings but they do not advance the argument.”
Lord Justice Burnett was ruling in Shaw v Kovac and others  EWCA Civ 1028, a case involving a claim for an award of £50,000 for the unlawful invasion of personal rights and loss of personal autonomy.
Lord Justice Davis, who gave the lead judgment, said the claim was accepted by the claimant to be “novel” in the sense that a right to recover under this head of loss had never been acknowledged.
Davis LJ said that, on the morning of the appeal hearing last month, the claimant’s counsel, Michael Berkeley QC, sent an email saying that his client, Ms Gabriele Shaw, objected to Davis LJ and Burnett LJ hearing the appeal and would ask them to recuse themselves on the grounds of apparent bias.
Burnett J, as he then was, gave the lead judgment in rejecting an application by Ms Shaw for judicial review which came before the Administrative Court in 2013.
Mrs Shaw appealed, and the appeal was heard by Davis LJ, along with Hallett LJ and Floyd LJ. Hallett LJ gave the lead judgment dismissing the appeal.
Davis LJ said Mr Berkeley acknowledged that he could not argue for apparent bias “simply by reason of the fact that Burnett LJ and I had (separately) been involved as judges in decisions adverse to Mrs Shaw in the previous judicial review proceedings”.
Instead Mr Berkeley relied on what Davis LJ described as an “untenable argument” that Burnett J had referred to a schedule put forward by Mrs Shaw as “misleading”.
The barrister went on to make what Davis LJ described as the “extraordinary submission” that Burnett J had concluded that the claimant’s father, William Ewan, had given “informed consent” for the operation that cost him his life.
Davis LJ said the argument “completely distorts” both the judgment of Burnett J and the function of the Administrative Court, which was not to make findings of fact. He said there was a further “fundamental” objection to the claimant’s argument in that there was “no issue” about the lack of informed consent.
As far as Davis LJ was concerned, he said counsel for the claimant attempted to rely on a comment by Hallett LJ in her judgment that Mrs Shaw was “trying to run a totally different argument”, unfortunately “based solely on her speculation and assertion”.
Davis LJ said Mrs Shaw “clearly, and again very understandably, remains very close to this whole case”.
He went on: “But that she personally would not wish to have sitting on this appeal two judges who have previously been involved in decisions adverse to her cannot of itself procure a recusal.
“The law is clear. The test is objective. The outcome cannot be determined by the subjective views or wishes of the objecting party.”
Agreeing with Davis LJ, Burnett LJ said the circumstances in which a judge should recuse himself had been “comprehensively considered” in a series of cases in the Court of Appeal and the House of Lords which emphasised that “questions of apparent bias are to be judged from the point of view of a fair-minded and informed observer”.
“The reality is that the appellant before us wished both Davis LJ and I to recuse ourselves because we had previously found against her on arguments advanced in the judicial review claim.
“Whilst entirely understanding why that should be so, it forms no proper basis for advancing a recusal argument.”