Appeal judges led by Lord Justice Sales (pictured) have dismissed a claim that a part-time judge should have recused herself to avoid an appearance of bias after she disclosed that one of the barristers appearing before her was also involved in a case in which she was leading.
Catherine Newman QC, a practising barrister and a part-time deputy High Court judge, was sitting on a case involving a dispute between a brother and sister over their mother’s estate.
Newman ruled in favour of the sister, but the brother sought to appeal the order on the basis that the judge had erred on the merits of the case and also that the judgment should be set aside on grounds of the appearance of bias.
Before the start of the trial Newman informed those involved that Jordan Holland, one of the barristers acting for the sister, was also acting as her junior counsel in unrelated litigation.
On the first day of the trial, Neil McLarnon, acting for the brother, made an application that the judge should recuse herself by reason of apparent bias. He said there was a legitimate concern that the judge might be too generous to Holland in order to protect him from disappointment if he lost the case.
He said this concern was particularly great due to the conditional fee agreement Holland was acting under, which meant his pay depended on the outcome. He suggested Newman might want to avoid damaging their future working relationship.
Newman resisted the application as she wished to avoid expense, frustration and delay. She pointed out that a judge’s approach to a case is governed by professional standards, and that these would not be overridden by a concern not to upset a junior counsel. She described as 'far-fetched' the idea that a judge would adjust their behaviour to avoid upsetting a junior counsel.
On appeal, McLarnon criticised Newman for not recusing herself, which he maintained was ‘unlawful’ because of the appearance of bias. He also criticised the lack of information she provided about the case she was taking with Holland, and for giving her reasons for not recusing herself only at the end of the trial.
Sales LJ dismissed the appeal, agreeing with Newman’s reasons for not recusing herself. He ruled that Newman did disclose the material facts needed, and said that she was correct to postpone giving a reason until after the case to avoid delay.
Mr Justice Cobb and Sir Stanley Burnton agreed with his ruling.