In a scathing 17-page judgment, the Court of Appeal has thrown out an attempt by the Post Office to appeal a judge’s refusal to recuse himself from group litigation on the grounds of bias. Ruling in Post Office Limited v Alan Bates & Ors, the Rt. Hon. Lord Justice Coulson said that the recusal application ‘never had any substance and was rightly rejected by the judge’.

He also expressed sympathy with the suspicion raised by the other party in the case, a group of sub-postmasters and mistresses, that the recusal application had been made in the hope that a sub-trial would collapse. ‘Although I can reach no concluded view on the matter, I can at least understand why the [sub-postmasters and mistresses] submitted that was its purpose,’ Coulson LJ said. 

The decision is the latest twist in one of several strands of litigation over £18m in damages claimed by sub-postmasters and mistresses arising from the introduction of the Horizon IT system. Litigation funder Therium Capital Management is supporting the action. In March the Post Office requested that Mr Justice Peter Fraser be replaced on the grounds that a his judgment in a previous sub-trial suggested he had already formed an opinion. 

In his judgment Coulson LJ says that the recusal request has a wider significance for cases divided into sub-trials. ’Whilst it will usually be possible to go through such a lengthy judgment with a fine-tooth comb and identify odd findings of observations which, arguably, may not have been directly relevant to the issues in that particular sub-trial, that is ultimately a futile exercise,’ he observed. What matters is whether a fair-minded observer would conclude that the observations show the judge to be biased - and the Post Office ‘has not come close to demonstrating it in that case’.

Commercial firm Freeths is acting for the sub-postmasters and mistresses; transatlantic firm Womble Bond Dickinson for Post Office Limited.