A good lawyer knows the law. A great lawyer knows the Judge.”

“A good lawyer knows the law. A great lawyer knows the Judge.”  The words of a wise man. However, there are tricky legal principles governing when Judges can hear cases where they might have a personal knowledge of the parties or a vested interest in the result. As held in Porter v Magil [2002] the test to determine this is; “if a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased.”

Mr Justice Jacobs

A recent example of if a judge would need to recuse themselves can be seen with Mr Justice Jacobs. Justice Jacobs recently resided over the case in which current and former Premier League Football teams sued their insurers for business interruptions and losses suffered during the Covid-19 Pandemic. He began proceedings by informing the court that he was, and had been for many years, a season ticket holder for Arsenal Football. He stressed that he did not believe that this would affect his ability to deal with the case, a sentiment that was then echoed by the Counsel representing both parties.

Mr Justice Smith

Another example would be when Mr Justice Smith presided over the case of Emerald Supplies Ltd v British Airways. Justice Smith had had a recent experience with BA when they lost his luggage and offered him no explanation as to where it was and how it had been lost. Clearly, this had left a sour taste in the judge’s mouth as he spent the trial asking BA’s counsel where his missing luggage was and even threatened to summon the Chief Executive for questioning. He was asked to stand aside by the Counsel and did so begrudgingly.

Positive v Negative & direct v overarching opinions: is one a stronger argument for recusal?

These two examples show two different perspectives. It may be argued that impartibility is easier when putting aside a positive opinion rather than a negative and a dislike for something may cause a stronger reaction than a positive one. Especially when in the instance of Justice Smith, his negative opinion led him to continually question where his luggage was.

Further Justice Smith had a direct incident as they lost his personal belongings. Justice Jacobs on the other hand had a less direct opinion as his team was one of twenty claimants. Justice Smith was directly affected so his take on proceedings may be less impartial. It also needs to be considered, that even though Justice Jacobs had a positive interest in one party there were other claimants, that due to football loyalties, he would have had a dislike or hatred towards, this itself may be a valid argument as the opinions may balance out any biases.

A judge’s position of responsibility should mean they have the ability to stay impartial regardless of the facts of the case. However, they are all human and at times this is easier said than done. There is no set template for determining if a judge should recuse and should be decided on a case-by-case basis and determined by a judge’s own merit. Therefore, while the situations above could propose potential situations that may affect the decision, the determining factor would be a judge’s own personal conduct and whether they can stay focused on the facts of “The Case” rather than his “Missing Case”.

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