When does a regulator pay costs? The Court of Appeal has spoken
High Court Judge recuses himself on basis that his consideration of the case may give rise to apparent or actual bias.
Judgment date: 20 June 2014
The appellant doctor (A), who specialised in paediatrics, appealed the decision of a Fitness to Practice panel (FTPP) of the Medical Practitioners Tribunal Service (MPTS) of the General Medical Council (GMC) that his fitness to practise was impaired by reason of deficient professional performance and that his name should be struck from the Register.
A was representing himself, both at first instance and on appeal. His grounds of appeal fell under two broad headings; firstly that he did not receive a fair hearing before the FTPP and secondly, that the sanction imposed was manifestly excessive.
The first of the grounds of appeal arose from A’s concern about the potential bias of the Legal Assessor in his case. A contended that the Legal Assessor made a disclosure which indicated actual or potential bias and which should have resulted in him recusing himself from that position in the hearing.
On 8 May 2013, the first day of the hearing, the Legal Assessor disclosed to the FTPP and the parties certain matters about health problems encountered by one of his children and questions/concerns that arose about the medical care the child had received. This provided A with an opportunity to make any arguments that he felt appropriate as to whether the Legal Assessor should recuse himself. The FTPP heard submissions from both parties and determined that the circumstances were such that they did not require the Legal Assessor to recuse himself. It gave a reasoned ruling on that issue, referring to R(Compton) v Wiltshire Primary Care Trust (No.2)  EWHC 1824. It was this decision that A appealed.
The appeal came before Warby J, who, whilst reading into the papers for this appeal, became aware that the Legal Assessor whose actual or apparent bias was being questioned by A was in fact a person well known to him as a fellow member of the chambers of which he was until very recently a member. They were fellow members of chambers for 20 years and had a continuing professional relationship in that Warby J was editing a book to which the Legal Assessor is a contributor. They have some social contact over the years, arising from membership of chambers.
Warby J invited submissions from A and the Respondent on this issue, having outlined that the test he would be applying on any challenge was that laid down by the House of Lords in Porter v Magill  2 AC 357, namely whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. A submitted that Warby J should recuse himself due to the length and closeness of the professional association between Warby J and the Legal Assessor, coupled with the importance to A’s case of the complaint he makes about the Legal Assessor’s role. Counsel for the GMC submitted that on the basis of the facts disclosed the test for apparent bias was not satisfied. It was conceded that it might make a difference if A was making a case that went beyond apparent bias.
Warby J reluctantly concluded that he should recuse himself from the case;
The Porter test is satisfied if the informed fair-minded observer would see a real possibility of bias. Whilst fanciful or tenuous objections must be disregarded, the threshold is not an especially high one. It is not necessary to show a likelihood of bias, of a real danger, for instance. Here the issues for decision involve complaints of actual and/or apparent partiality against an individual with whom I have a long, reasonably close professional association, and an association which is continuing at present albeit in a limited context. Those complaints form a significant plank of the Appellant’s case, in an appeal which is concerned with his right to work as a doctor and the public interest in ensuring that, if unfit to do so, he does not work. 
It was said that:
‘If the complaint against the Assessor is, as it may be, one of actual bias then it seems clear to me that the links between me and the Assessor mean that I should not sit in judgement on the case. Even if the allegation made by Dr Adu is no graver than an apparent bias in the FTPP proceedings I have concluded that the fair-minded observer knowing the relevant facts would see a possibility that, in applying what should be an objective test, I would bring to bear my subjective impressions of the individual’s character and personality.’ 
The Court considered the case of Locabail (UK) Ltd v Bayfield Properties Ltd  QB 451 where the Court of Appeal gave guidance as to the circumstances in which a Judge should recuse himself, and the procedures and the approach to be adopted.
Warby J expressly stated that in reaching the conclusion he did, he was ‘very conscious of the risk of being too ready to accede to an application for recusal’, the drawbacks of which were outlined in the case of In Re J.R.L, ex parte CJL (1986) 161 C.L.R. 342 (Mason J sitting in the High Court of Australia), namely encouraging parties to believe that by seeking disqualification of a judge they will have their case tried by someone though to be more likely to decide the case in their favour.
It was held that paragraph  of the Locabail case was relevant, which stated that ‘a real danger of bias might well be thought to arise if….the judge were closely acquainted with any member of the public involved in the case’. The Court in that case also said that ‘..if in any case there is a real ground for doubt, that doubt should be resolved in favour of recusal’. 
Having considered all the circumstances and relevant case law, Warby J decided to recuse himself, having expressed regret at the ensuing delay and cost implications. The merits of the appeal therefore fell to be considered by a different judge on a later date.
A case which usefully summarises the current position with regards to judicial recusal. Given the high likelihood of Legal Assessors having had professional contact with members of the judiciary, and the number of cases where appellants criticise legal advice given to the panel, it is perhaps surprising that this does not arise more frequently.
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