Judge refuses to recuse herself over counsel link

Steyn: Untenable to suggest appearance of bias

A High Court judge has refused a request from a litigant in person to recuse herself from hearing a case where she had briefly supervised counsel for the defendants at her old chambers.

In two rulings made within a few days of each other, Mrs Justice Steyn also refused to let a McKenzie Friend address the court on behalf of the claimant.

Ameyaw v McGoldrick & Ors is a case involving claims for libel, malicious falsehood, breach of confidence and misuse of private information.

The claimant said she recognised that counsel often appeared before judges with whom they had been in chambers, but argued a case of apparent bias because she said the judge had mentored Rupert Paines while they were both at 11 King’s Bench Walk.

She said: “It is submitted that the professional embarrassment here is all too plain and obvious as between Rupert Paines appearing before his mentor, Mrs Justice Steyn, and Mrs Justice Steyn having to preside over matters to which one of her protégé is seeking to strike out particulars of claim in its entirety could not be too more embarrassing for the learned [judge] not to continue to wish to sit to be on the safest side on the particular circumstances of this case.”

Steyn J said she had been Mr Paines’ pupil supervisor for three months in 2012, and – calling their relationship ‘professional’ – described the recusal application as ill-founded.

Citing the Court of Appeal in Watts v Watts [2015] EWCA Civ 1297 – where the barrister for one of the parties was junior counsel to the fee-paid judge in another case – she said the court held it was “untenable” to contend that there was an appearance of bias where one of the parties is represented by a barrister who was once the fee-paid judge’s pupil supervisor or where the fee-paid judge and the barrister representing one of the parties were members of the same chambers, and the barrister was the more senior.

She continued: “It is all the more untenable to suggest there is an appearance of bias in this case where (a) I am a full-time judge; (b) I am no longer a member of the chambers of which Mr Paines is a member; and (c) I am more senior than Mr Paines and I was his pupil supervisor, not vice versa.”

At the hearing last year, the claimant had sought permission for her McKenzie Friend, a Mr Ogilvy, to make submissions on the law; she would deal with the facts.

Steyn J said it was clear the court should only allow this in special or “very exceptional” circumstances, which were not present here.

The claimant was “a well-educated, intelligent woman who was clearly well able to speak on her own behalf” and had “extensive experience of litigation”, including representing herself.

The judge also noted that Mr Ogilvy had been convicted on counts of falsely representing he was a barrister.

“The only reason the claimant gave for asking permission for Mr Ogilvy to make oral submissions on her behalf was, in effect, that she was underprepared because she had assumed that he would be able to make submissions on her behalf.

“Given that McKenzie Friends are only permitted to make oral submissions in special or very exceptional circumstances, there was no basis on which the claimant (or Mr Ogilvy) could properly have assumed that the court would grant him a right of audience.”

She had also told the claimant she could make further written submissions within seven days of the hearing.

Steyn J recorded that, until this point in the hearing, the claimant had behaved “courteously and respectfully”.

But after making this ruling, “her behaviour changed very suddenly and dramatically. She became extremely angry, shouting very loudly at me, as well as over me when I tried to speak. The claimant also picked up files and threw them forcefully down onto the bench”.

She continued: “Two of the people accompanying the claimant (who I understand to have been her mother and sister) went forward from the rows where they had been sitting, apparently to seek to calm the claimant down.

“The claimant then appeared to sit down under the bench so that she was no longer visible to me. At this point the claimant’s mother began shouting and became very disruptive.”

The judge adjourned and after leaving court was told that an ambulance had been called. When the court reconvened after lunch, the claimant and her representatives were not present; although the judge was not sure whether the claimant had been taken away by the ambulance or just refused to return to court, she adjourned the hearing for two days.

In the subsequent recusal application, a second ground was that the judge had seen the claimant collapse in court but been unconcerned for her welfare.

Steyn J said: “It is not clear to me that the criticism is truly one of bias, rather than of callousness.”

In any event, she said, “a fair-minded and informed observer would consider that a reasonable alternative explanation for the fact that I said nothing about the claimant’s collapse before I left court is that I was not aware she had collapsed”.

She continued: “In my judgement, a fair-minded and informed observer would not consider that there is anything in the way in which I dealt with the hearing on 1 July 2020 which gives to a real possibility of bias.”

The claimant’s mother has lodged complaints about the judge as a result of what happened in court, but Steyn J said: “It is clear that the mere fact that criticisms have been levelled at a judge – or complaints made – does not in and of itself give rise an appearance of bias.”

She dismissed the application for recusal.

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