knowledge 4 July 2016 |

The Supreme Court Clarifies the Test for Objective Bias

In O’Driscoll (a minor) v Hurley,¹ the plaintiff/appellant had been awarded damages in the High Court for medical negligence. Liability was conceded by the defendants. The plaintiff appealed to the Court of Appeal arguing that the amount of damages awarded was inadequate.

At the appeal hearing, the plaintiff applied to have one of the appeal judges, Ms Justice Irvine, recuse herself on the grounds of objective bias. She was said to have chaired and addressed a “private conference” run as a promotion by the firm of solicitors on record for the State Claims Agency (the agency defending the appeal). The judge was pictured on the firm’s website sitting under the solicitors’ name and logo while a senior member of the firm was delivering a speech. The judge was also separately pictured with the head of the State Claims Agency. The Court of Appeal refused the application. The plaintiff appealed that refusal to the Supreme Court.

The test for objective or perceived bias

Delivering the judgment of the Supreme Court, Dunne J noted that the established test for objective or perceived bias is “…whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not invoke the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts.”²

The Bangalore Principles

The court considered the Bangalore Principles of Judicial Conduct 2002 (and related commentary)³ as they “encapsulate at an international level norms of universal application in relation to such issues as bias”. Paragraph 2.5 of the Bangalore Principles provides that:

 “A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where:

• the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;
• the judge previously served as a lawyer or was a material witness in the matter in controversy; or
• the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy;

provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.”

The “reasonable observer” is “a reasonable, fair-minded and informed person” and the attitude of the parties to a case is irrelevant, because even if the parties consent to a judge who feels he or she should be disqualified from hearing the case, the judge should step aside, because of the wider public interest in the manifestly impartial administration of justice.

The Bangalore Principles require that a judge “ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary” and the commentary recommends avoidance by judges of conduct out of court that is controversial or overtly political. Significantly in the context of this case, paragraph 4.11 of the Bangalore Principles provides that “subject to the proper performance of judicial duties, a judge may…write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters.”

The commentary on this principle includes observations that “a judge may contribute to legal and professional education by delivering lectures, participating in conferences and seminars, judging student training hearings and acting as an examiner. A judge may also contribute to legal literature as an author or editor. Such professional activities by judges are in the public interest and are to be encouraged. However, the judge should, where necessary, make it clear that comments made in an educational forum are not intended as advisory opinions or a commitment to a particular legal position in court proceedings, particularly because judges do not express opinions or give advice on legal issues that are not properly before a court...”

Dunne J endorsed this commentary, noting that judges on their appointment do not stop developing their knowledge of the law, and that the practice of law necessarily involves openness to the concept of lifelong learning, which necessitates that all lawyers, including judges, participate in continuous learning and development; indeed judges have a statutory obligation to do so.⁴

Application to the facts

The appellant did not suggest that the judiciary should avoid all legal conferences and educational events, which judges are frequently asked to chair. The complaints were more nuanced. Particular emphasis was placed on the aspect that the particular conference had taken place only 13 months before the Court of Appeal hearing and was a “private” conference.

The Supreme Court was not persuaded. At the time of the conference, Ms Justice Irvine was responsible for managing the High Court personal injuries list, including medical negligence litigation, and was chair of a working group on medical negligence and periodic payments. It was perfectly understandable and appropriate that she would attend the event.⁵ The conference was “private” only in the sense that it was not open to the general public, but stakeholders on all sides of the issues were among the invited audience of more than 250.

The court concluded that the reasonable observer would not have formed an apprehension of bias. Rather, the reasonable observer would see that the judge was acting appropriately in furthering the knowledge of those involved as to the work of the working group which she chaired, given her particular knowledge and familiarity with the issues. The engagement in the particular conference was to be viewed as desirable. The fact that the conference was hosted by the firm who acted for the defendants in the particular case did not affect this conclusion, having regard to a consideration of the nature of the conference and the topics covered. There was no question of partiality and the subsequent use of photographs of the judge on the firm’s website was neither exceptional nor unusual and could not sensibly be regarded as an endorsement by the judge of the particular firm.

Conclusion

The Supreme Court noted that applications to judges to recuse themselves have become commonplace. Although this was not such a case, many litigants involved in multiple cases frequently apply for recusal tactically as a kind of forum shopping which can be an abuse of process. While judges need carefully to consider such applications having regard to the rights of all parties to the proceedings, recusal out of excessive caution or deference based on insubstantial objections would be intolerable and would risk profound injustice.

The delicate balancing act for judges is that by speaking publicly outside court, or even by association with events or issues, judges leave themselves open to accusations of bias, but if they choose to avoid this risk entirely by never speaking or writing extra-judicially, judges risk the charge of being aloof from “ordinary life” and deny public access to considerable expertise, and important perspectives from within the justice system, which can make vital contributions to discourse on how that system operates.

Judges are entitled to participate appropriately in public discourse and it remains both desirable and appropriate that they support legal education and development judiciously and apolitically. The judgment in O’Driscoll reiterates that, in accordance with international norms, judges should not hear cases where, objectively assessed, a reasonable, fair-minded and informed person would apprehend that the judge is unable to decide the matter impartially. However, it also emphasises the important corollary that judges must defend and assert their obligation to perform their functions when they are asked to recuse themselves based on insubstantial grounds.