A district judge assessing a barrister’s fees did not need to recuse himself simply because that barrister had been appointed to the bench, the High Court has ruled.
Mr Justice Waksman ruled in Akers & Ors v Kirkland Ltd & Ors there was no reason for District Judge Jenkinson to decide he was not in a position to assess the fees. A link to the case can be found here.
The DJ and regional costs judge was required to assess the £1.7m claimant costs following the settlement of 37 claims in relation to a crane collapsing onto a block of flats in Liverpool in 2009.
Included in the costs were £103,000 fees attributed to claimant counsel Shirley Hennessy, who had since been appointed as a full time district judge by the time of the costs assessment.
DJ Jenkinson had said he was ‘not comfortable at all’ dealing with Hennessy’s fees, and the claimants made an application for him to recuse himself completely.
The court heard that with DJ Jenkinson sitting at Liverpool County Court and DJ Hennessy at Birkenhead, there was a ‘degree of professional and… social interaction’ between them, including occasionally meeting at social events where judges were invited.
DJ Jenkinson opted to partially recuse himself based on a ‘real possibility a fair minded observer may take the view there was a potential for bias’ and it might be felt a judge might approach a colleague’s fees ‘generously’.
Hearing an appeal from the claimants, who wanted a full recusal, and defendants cross-appealing to contest any recusal, Waksman J found no basis for saying the handling of the costs assessment would be ‘tainted by apparent bias’.
The judge said: ‘There was in fact, no cases for the district judge to have recused himself even at all, even to the extent of the assessment of counsel’s fees.
‘This was a case, in truth, of no more than some judicial discomfort, but which falls well short of establishing apparent bias.’
He added that there had to be a ‘sense of proportion’ that counsel fees amounted to just 7% of the total claimed.
The judge was also critical of the claimant solicitors for having sought the opinion of a retired district judge when applying for DJ Jenkinson’s recusal. In his recusal judgment, DJ Jenkinson described this as ‘unprofessional’, and Waksman J said he was entitled to make such an assessment.
The High Court judge added: ‘Experienced solicitors should know better than to attempt to support an application of this kind by seeking the opinion of a retired judge, as if that could or should somehow influence the judge who is the subject of the recusal application.’