A judge hearing a contempt case has agreed to recuse himself three days after his initial refusal to do so. Mr Justice Jay had been the subject of an application from defendant and former solicitor Edward William Ellis to recuse himself on the ground of apparent bias.
In a written judgment handed down last Friday, the judge said the need for caution in such serious proceedings was ‘obvious’ and he had decided it would be ‘prudent’ to step aside.
The court heard that Ellis, struck off in 2013, was alleged to have acted in breach of a general civil restraint order imposed by Mrs Justice May in 2018.
The defendant, who appeared in person, said that Mr Justice Jay was disqualified from hearing the case because of comments following a separate matter in 2016.
The court heard that Ellis had been involved with the named litigant Berry v The State in 2015. The case culminated in Berry making a 999 call from court 37 to demand that Mr Justice Jay be arrested for treason. Berry was one of four people who then brought proceedings against the Ministry of Justice alleging fraud and conspiracy. This case was again heard by Mr Justice Jay.
In his judgment of that case, Jay J mentioned the involvement of Ellis in proceedings, pointing out he was subject to a civil restraint order barring him from assisting others to bring claims, and suggesting he had acted in breach of that order. It was said by the judge at that time that Ellis might be in contempt.
On last week’s hearing, the judge rejected any allegation that this history gave rise to the inference of bias. He said the potential contempt related to a different matter and that there had been no actual finding of contempt against Ellis.
But, after further reflection, the judge said it was right to be cautious in this sort of situation. ‘I cannot rule out the possibility that a fair-minded observer might think that in these circumstances I might be predisposed to find [against Ellis] because I had already formed a view about [him] and his modus operandi.’
The contempt case will be heard by a different judge next month.