We are all human and some perhaps are more human than others. But while judges should always be unbiased and above the fray, as Roman Poet Horace acknowledged in his Ars Poetica, even Homer can sometimes nod. A recent example appeared in the judgment of Turner J on 15 May 2025 in R (Ladybill Ltd) v Sheffield Magistrates’ Court [2025] EWHC 1169 (Admin). This concerned a judicial challenge to a decision of District Judge Spruce (the judge) when he refused to recuse himself from hearing proceedings between the claimant, Ladybill Ltd, and the interested party, Rotherham Metropolitan Borough Council (pictured).
In proceedings brought by Sheffield City Council against Emeraldshaw Ltd regarding payment of non-domestic rates, the judge had been particularly critical of Emeraldshaw, which consequently sought to challenge the judge’s decision by judicial review. While this was pending, separate proceedings were brought by Rotherham Metropolitan Borough Council against Ladybill Ltd. (A company related to Emeraldshaw since both were part of the MCR Property Group with the same ultimate beneficial owners and directors.) As Turner J indicated, there was ‘a very significant overlap between both the issues arising and the people involved in the two cases’.
So when the judge who had been so critical of Emeraldshaw in his judgment reserved the Ladybill case to himself, Turner J remarked that Ladybill and MCR ‘cannot have been optimistic that their prospects of success had thereby been improved’. After the Emeraldshaw judgment had been handed down, the judge’s involvement in the procedural process of Emeraldshaw’s judicial review application gave rise to serious concerns of apparent bias. For although the judge apparently chose not to make a submission in the Emeraldshaw Acknowledgment of Service (as was permissible), and stated: ‘THIS IS NOT A SUBMISSION’, the judge nevertheless made a substantial ‘observation on the claim’ which Turner J described ‘in large part’ as a ‘rather strenuous attempt to defend his decision in ways that provide little or no assistance to the Administrative Court’.
Ladybill applied to the judge to recuse himself from hearing the Ladybill case. However, during the hearing, the judge made various comments, including on Emeraldshaw that: ‘It was a careful reasoned judgment. It was not one-sided. It was not biased.’ The judge went on to refuse the recusal application, indicating (among other things) that: ‘I have been a judge for 17 years and have never had an application as far as I remember.’ Also: ‘the court stands by its written judgment… which sets out a clear basis for conclusions with little else required’. The judge therefore refused Ladybill’s recusal application. The grounds upon which this decision was challenged included that the judge had ‘interjected during the hearing in such a way that it was clear the learned judge ought to have recused himself because he had become too personally involved in the matter of defending his judgment which was under attack in the judicial review’.
Following Porter v Magill [2002] 2 AC 357, the test for apparent bias (that is, where there is an appearance of bias), is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. And (per Lord Hope in Helow v SSHD [2008] UKHL 662), the fair-minded and informed observer: ‘… knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially’. However, per Zuma’s Choice Pet Products Ltd v Azumi [2017] EWCA Civ 2133: ‘the mere fact that a judge has decided applications in the past adversely to a litigant is not generally a reason for that judge to recuse himself at further hearings’.
Nevertheless, in this case, Turner J was satisfied that: the combination of the judge’s oratorical contribution to the Acknowledgement of Service Form; some of his comments during the recusal hearing; and some of the comments which he gave in his reasons for refusing to recuse himself were such as would lead the fair-minded and informed observer (FMIO) to conclude that there was a real possibility that the judge was biased. For the FMIO would be entitled to conclude that there was a real possibility that this judge was likely to be influenced by the extraneous desire to decide the Ladybill case in a way which validated his earlier decision in the Emeraldshaw case.
Nevertheless, acknowledging that sometimes even Homer nodded, Turner J added that: ‘It is only human nature that a judge may feel a mixture of emotions when facing a challenge to one of his or her decisions whether by way of appeal or review. Ultimately, however, he or she must thereafter be seen to act in a way which is consistent only with the objective demands of fairness and justice. Where a judge has made adverse findings against a party in one claim, it is particularly important that the impression is not given thereafter that he or she may approach later related cases with anything other than an open mind.’ Here, a FMIO would be entitled to conclude that there was a real possibility of this judge being influenced by the extraneous desire to decide Ladybill in a way which validated his earlier Emeraldshaw decision. The judge was therefore recused from sitting on the Ladybill claim.
Nicholas Dobson writes on local government, public law and governance
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