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QC says judge should have recused himself in school friend case

Rose: I would have recused myself

Leading QC Dinah Rose has questioned the decision of a judge not to recuse himself from hearing a case where he had been at school with the director of a defendant company more than 45 years ago.

We reported yesterday [1] on Brake v Swift, where apparent bias was alleged, in which His Honour Judge Paul Matthews, sitting as a High Court judge, said he last saw the man “in the early 1970s at school”, where they had been friends.

In a discussion on Twitter, Ms Rose asked: “Surely it’s well-understood that a judge shouldn’t try a case where he knows one of the parties personally? An oddity here is that he declared his knowledge, but said he didn’t think it raised an issue. Then neither side objected. [In my view] he should simply have declined the case.”

She added that the “whole practice of judges hearing recusal applications about themselves is strange”, suggesting it was in breach of the nemo iudex rule (nemo iudex in causa sua – no one should be a judge in their own cause).

Edward Levey QC of Fountain Chambers replied: “I agree it feels odd, although not where the allegation is apparent bias, and thus an objective test. ([For what it’s worth], I don’t think a connection from school 40+ years ago, with no interaction in the meantime, is a reason to recuse).”

But Ms Rose said she would not sit on a case where an old school friend was a party even if they had not seen each other since. “Mightn’t a reasonable observer think that might affect your assessment of someone’s credibility?”

Mr Levey observed that judges were “frequently expected to put extraneous matters out of their mind”, such as prior knowledge of a litigant.

He went on: “Stating the obvious: whilst the rule against bias is fundamental, there’s also a strong public interest in judges not recusing themselves too easily. I’m still inclined to think that Brake was correctly decided…

“I don’t think a school friendship, with no direct or even indirect contact, since leaving school in the ’70s creates an appearance of bias, but the fact that you and other fair minded observers think otherwise may be sufficient to show that I’m wrong about that.”