Judge recuses himself because of work with party’s solicitors

Nissen: In general, judges should not recuse themselves because of their role as practitioners

A deputy High Court judge has recused himself from conducting a summary assessment of costs because of his work with the defendant law firm and the possibility he could end up later arguing the points he was deciding.

Mr Alexander Nissen QC – who practises from Keating Chambers – was asked to recuse himself by the claimant in Amey LG Ltd v Aggregate Industries UK Ltd [2019] EWHC 329 (TCC) as it was a bill from the defendant’s solicitors, City firm Macfarlanes, that was under scrutiny.

Mr Nissen disclosed his “professional contact” with Macfarlanes at the outset of the trial and the defendant’s counsel argued that his “continued judicial involvement in it was then the subject of consent by Amey in the proceedings”, which “must be taken to have included” his conduct of the summary assessment process.

Counsel for the claimant said that, when his client consented to Mr Nissen hearing the case at the outset of proceedings, “they did not have at the forefront of their minds the particular nuance on costs as it has now emerged. He therefore suggests that his client’s prior consent carries less force than otherwise might be the case”.

The judge said he was “not surprised” that this issue was not foreseen at the outset, but did not accept as a general proposition that deputy judges should recuse themselves from dealing with matters such as summary assessments because of their other role as practitioners.

“That contention would assume an inability to distinguish between the deputy judge’s public judicial duty and the private commercial relationships which that person may also have.”

Mr Nissen continued: “I do not accept for one moment that, were I to continue to hear this application, there would be conscious, or indeed subconscious, bias on my part.

“However, I do accept that, on the special facts of this case, I should recuse myself. It is conceivable that, in the not too distant future, I will find myself as counsel arguing in support of a summary assessment of bills of costs prepared by Macfarlanes using the very same rates about which I have made rulings in my judicial capacity.

“I remind myself that this is not only a matter which is affecting the lay clients in the present proceedings but also impacts upon the level of recovery of the solicitors who instruct me.

“Therefore, I do understand why it may be seen by others as inappropriate for me to continue in this particular case…

“In those circumstances, I am going to accede to the request not to deal with summary assessment.”

Instead, the judge said it should be dealt with by way of a payment on account, the alternative proposed by the claimant.

He ordered payment of £50,000, a sum which was accepted as payable by the claimant,

“I do that on this basis: if that figure is low, and significantly low, it is the claimant who will bear responsibility for the costs of the detailed assessment process in respect of these costs in any event and it therefore has every incentive to seek to reach sensible agreement with the defendants.”

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