Barder: Exceptional and rare
The Court of Appeal in the case of Mengiste and another v Endowment Fund for the Rehabilitation of Tigray and others  EWCA Civ 1003 has given guidance on how recusal applications should be approached and held that the High Court judge at first-instance was wrong not to recuse himself from hearing the wasted costs application.
For a summary of the decision appeals and the underlying facts, see our previous update here.
This was an appeal brought by the original Claimant’s solicitors against the decision of High Court judge Peter Smith J not to recuse himself from hearing the Respondent’s wasted costs application, and the subsequent wasted costs order made against the Appellant.
The original recusal application was made due to concerns about criticisms made by Peter Smith J against the Appellant in his judgment on a stay application. The judge had been very disapproving of the expert evidence put forward by the Appellant, and also criticised the Appellant’s apparent failure to properly advise the expert of his duties under CPR 35.
Held on Appeal
The Court of Appeal held that Peter Smith J should have recused himself from hearing the wasted costs application, and therefore his decision on the application must be set aside.
As established in the case of Porter v Magill  2 AC 357, if a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased, the judge must recuse himself.
Arden LJ noted that although in most cases it will be appropriate for costs issues to be dealt with by the same judge as heard the substantive application (as confirmed in the decision in JSC BTA Bank v Ablyazov (Recusal)  EWCA Civ 155) there are exceptions.
Arden LJ made it clear that this was an exceptional case where the apparent bias was enough to necessitate a recusal. He focused on three points in particular:
Arden LJ concluded that Peter Smith J should have recused himself, and the decision on the wasted costs application should therefore be set aside.
However, the Appellant had failed to show that no judge should have concluded that a wasted costs order should be made. Arden LJ emphasised that this was a high hurdle to satisfy, which on the facts the Appellant had failed to meet. The appeal in respect of the wasted costs order was therefore dismissed.
This decision confirms that there may be limited circumstances where a judge’s apparent bias will cause them to be disqualified from hearing a subsequent wasted costs order. As emphasised by Arden LJ, where there is an issue of apparent bias, the test established in Porter v Magill must be “fearlessly applied”.
Again, this decision accentuates the legal principle that justice must not only be done but must be seen to be done.
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