The relevant principles relating to the appearance of apparent bias on behalf of a trial judge are well settled in English law, and were most recently applied by the Jersey Courts in the matrimonial case of O'Brien v. Marett & Ors [2007] JRC 236 in which the Third Party sought to have the presiding judge, the Bailiff, recuse himself in these proceedings.

In a judgment dated 1st June 2007 (O'Brien v. Marett & Ors [2007] JRC 109) relating to the costs of a preliminary issue which had been due to be tried on 29th May 2007, the Learned Bailiff made a number of adverse and, in the eyes of the Third Party, highly critical and unjustified findings, as to the Third Party's conduct in relation to that hearing. The Third Party contended that the evidence which he was now placing before the court contradicted these findings, and that had this information been available to the court at the time, it would never have come to the conclusions it did.

The Petitioner opposed the application and contended that the court was justified in making the findings that it did which were expressed in appropriate judicial language. Further, the court had formed a judgment based on the materials before it at the time which it was entitled to do. The crux of the Third Party's argument was that, with such adverse findings against him, and with proceedings still to come, he could not possibly be afforded a fair trial before the present court.

There are various Jersey cases where the test for apparent bias have been set out. The test was expressed shortly in the case of In Re Esteem Settlement [2001] JLR 169 which cited the observations of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union [1999] (4) S.A. 147. In that case the court said that an objective test was appropriate, and that:

"the question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel".

In the House of Lords case of Porter v. Magill [2002] 1 All ER 465, it was held that:

"In determining whether there had been apparent bias on the part of a tribunal, the court should no longer simply ask itself whether, having regard to all the relevant circumstances, there was a real danger of bias. Rather, the test was whether the relevant circumstances, as ascertained by the court, would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal had been biased".

In deciding whether he should recuse himself, the Bailiff applied the test derived from the above authorities, namely whether all the circumstances, which have a bearing on the case, would lead a fair-minded and informed observer to conclude there was a real possibility of bias as a result of his failure to withdraw.

Disqualification of a Judge

The English Court of Appeal's view in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65, was that the disqualification of a judge for apparent bias was "not a discretionary case management decision reached by weighing various relevant factors in the balance". There was either a real possibility of bias - in which case the judge should be disqualified - or there was not. On the issue of disqualification: "& an appellate court is well able to assume the vantage point of a fair-minded and informed observer with knowledge of the relevant circumstances".

Although Porter v. Magill moved away from the "real possibility" test, it is important that the informed observer needs to have knowledge of the "relevant circumstances" which in this case were extremely important. The court found that although it had been critical of the conduct of the Third Party, that these observations had to be viewed in context, namely that an application was being made by the Petitioner for indemnity costs following a concession at the eleventh hour by the Respondent and Third Party that they would not oppose the granting of the relief sought at the hearing of the preliminary issue. The award of indemnity costs was made following the finding that they had abused the process of the court.

The court was clear that it would be necessary, during the course of proceedings that "robust observations on and even criticism of the conduct of parties" would inevitably be made from time to time and importantly that:"It would be very undesirable & if judges were to feel inhibited from making any necessary findings, or uttering critical observations which might help the parties to compromise their differences, by fear that they might subsequently be challenged for apparent bias & Of course any such observations should be expressed judiciously and in appropriate judicial language."

The Bailiff thus declined to recuse himself. The judgment sends out the message that the court should not be constrained from making appropriate and justified observations regarding a party's conduct in proceedings where their approach to litigation has been found wanting and an affront to the court process. It is clearly important that judges presiding over acrimonious proceedings can make it clear that bad behaviour will not be tolerated.

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