Jolly hockey sticks, or “It’s not recusunal…”

I always love a case about recusal, it threw up for example the delicious joy that was a High Court Judge cross-examining counsel about the Judge’s own lost luggage Judicial baggage | suesspiciousminds

This one is private law. A District Judge (DJ Wylie) had conducted a finding of fact hearing (the mother had made allegations of violent behaviour against the father, the Court heard the evidence and made decisions about what had happened, called ‘findings of fact’)

W (Children: Reopening/recusal) [2020] EWCA Civ 1685 (15 December 2020) (bailii.org)

Two findings were made, and the other two allegations were not made out. The father was later convicted for one of the matters set out in the first finding made. The case would then move to evidence, arguments and decisions about contact and possibly where the children would live.

The father, however, made an application for a re-hearing. It was decided that this application for a re-hearing ought to be heard by District Judge Wylie, which would be the usual course of events.

What was less usual though, is that DJ Wylie recused herself from the hearing and it went before His Honour Judge Duggan

At that hearing, father was in person, and mother was represented (although she was paying privately for her lawyer, which becomes important later).

All that the mother and father knew of DJ Wylie’s situation was that she had recused herself for personal family reasons. It seemed, but one can’t be sure, that HHJ Duggan knew a little more than that.

The Judge raised the issue of recusal and its impact on the findings. There were two broad possibilities – one that DJ Wylie having had reason to recuse herself would not sit on the case in future, and the second that if there was something that meant that she shouldn’t or couldn’t hear the case in the FUTURE then didn’t it follow that the work she’d done up to that point should be redone?

The father’s application for a re-hearing had a very high legal bar to cross, but as the Judge explained to him, an application that DJ Wylie having recused herself from part 2 of the case ought not to have done part 1 and the case should be re-heard as a result of judicial bias was probably an easier argument to make and succeed with. For the mother’s part, counsel explained that having paid privately for her representation, she would be substantially financially affected by having to run the fact finding hearing all over again, and importantly that nobody really knew what DJ Wylie’s reasons were for withdrawing.

HHJ Duggan decided that there was no suggestion of actual bias, but that an independent observer would consider that if a Judge couldn’t hear part 2 of a case for some personal conflict, then what they had done at part 1 might also be under doubt, and that thus the finding of fact hearing should be re-heard before another Judge.

The mother appealed, and the case went before Jackson LJ.

In the meantime, the mother’s lawyers wrote to the Court asking three very proper questions:-

1. What was the ‘family connection’?
2. At the finding of fact hearing in February 2020, had the Judge been aware of it?
3. If so, why wasn’t it raised with the parties?

The Court replied, though very very late in the day (The DJ gave the Court the reply in July, the Court sent it to the parties in NOVEMBER! just before the appeal)

1. The Judge’s son, and the mother, are members of the same hockey club. On social media, the Judge’s son and the mother follow one another.
2. The Judge had not realised this until June 2020, well after the finding of fact hearing
3. if the Judge had realised, she would have raised it with the parties.

At the appeal, the mother’s case was that the process before HHJ Duggan was flawed (the mother and father had not known the reasons for recusal, or what had been known by DJ Wylie at the time) and that HHJ Duggan had applied the wrong test in law.

As to recusal for the appearance of bias, Ms Bentley submitted that the Judge framed the test wrongly. The question is not whether a reasonable observer would be concerned that justice has not been seen to be done; the question is whether the reasonable observer would conclude that there is a real possibility that the judge was biased

The Court of Appeal said this:-

n my view, once the District Judge decided to decline to hear the case on the basis of recusal, she should have ensured that the parties were formally notified of her reason for withdrawing from the case. This could have been done at the time of the hearing before the Recorder. Had he been in a position to inform the parties of the facts so that they were in a position to respond, they may well have been content for the case to continue in front of another judge, as had already been contemplated. But as it was, they were left in the dark and both parties asked the obvious question “Why?”, the father ahead of the hearing before the Judge and the mother afterwards.

t is understandable that the Judge was troubled by this odd position and clear that he was acting with the best of intentions. At the same time, it was necessary for him to approach the matter systematically. The starting point was that the listed application was the father’s application to reopen certain findings of fact. There had been no regular process of recusal by the District Judge and there was no appeal before the Judge. In these very unusual circumstances, the fact that a party had not appealed was not a bar to the Judge raising the issue himself, but in doing so he needed to acknowledge that a decision to set aside findings on the basis of apparent bias was one that could only be taken in an appellate capacity. Procedural steps could have been taken to achieve this, but the issue was not addressed and it is not clear what capacity the Judge was acting in.

That procedural difficulty might not be insuperable, but there are other reasons why the Judge’s unexpected decision to set aside all of the findings on the basis of apparent bias on the part of the District Judge was, I regret, both wrong and unfair:

(1) The Judge was not in a position to take a decision about apparent bias: the decision calls for an informed observer, which supposes knowledge of the basic facts. He should have put himself in a position to inform the parties about the District Judge’s reasons for wishing to recuse herself so that they were in a position to respond. He instead referred only to the existence of a family connection, which they were in no position to assess. Consequently, they were not only unable to put their case about the District Judge’s withdrawal but, more seriously, they had no meaningful way of addressing the new and radical proposal to set aside her findings altogether. This process was not fair to either party.

(2) As to the legal test for apparent bias, the Judge was right to say that one must put oneself in the position of a reasonable observer who is not involved in the case. However, he was mistaken in stating that the test is whether the observer would be concerned that justice had not been seen to be done, when the correct question is whether the observer would conclude that there was a real possibility that the judge was biased, which is a stronger thing

(3) Finally, the Judge’s conclusion that the District Judge’s findings were infected by apparent bias is not supported by any sound reasoning. This was the sort of happenstance community tie that should be disclosed to parties by a judge who is aware of it, but would not ordinarily lead the reasonable and informed observer to conclude that the judge could not try the case fairly. In this case the matter was put beyond argument by the fact that the District Judge did not discover that her son and the mother knew each other until months after she had made her decision.

HHJ Duggan’s decision was therefore overturned, and the findings made by DJ Wylie restored, father’s application to reopen them being refused.