Costs News

31 October 2019
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District judge was wrong to recuse himself from assessing fellow judge’s costs

A regional costs judge was wrong to recuse himself from dealing with the costs of counsel where the barrister had subsequently become a colleague, the High Court has ruled.

Mr Justice Waksman said “judicial discomfort” at the situation in which he found himself was not a strong enough reason for recusal.

The case involved 41 claims after a crane collapsed onto a block of flats in Liverpool. District Judge Jenkinson in Liverpool recused himself on his own motion from dealing with the part of detailed assessment in relation to the claimants’ counsel’s fees, because that barrister – Shirley Hennessy – had since become a colleague as a full-time district judge at neighbouring Birkenhead County Court.

He said he was concerned about apparent bias – the proximity of the two courts meant there was a degree of professional and social interaction between the district judges at both courts. He rejected the claimants’ application to recuse himself entirely.

The test for judicial bias is from the House of Lords ruling in Porter v Magill: “Having ascertained all the circumstances, bearing on the suggestion that the judge was or would be biased, the court must ask whether those circumstances would lead a fair minded and informed observer to conclude there was a real possibility that the tribunal was biased.”

Waksman J did not accept the claimants’ argument that there was some “clearly separate ground of personal embarrassment as a basis for recusal as opposed to the application of the fair-minded observer test”.

He continued: “The simple point is that judges should take care to ensure that their recusal is, in fact, necessary according to an application of the objective, fair-minded observer test. And that is the case whether they take the initiative to consider recusal or whether a party to the proceedings makes the application to recuse first.”

DJ Jenkison and Ms Hennessy did not have anything more than a professional connection, Waksman J said. The district judge was “oversensitive about his position”, no doubt acting out of an excess of caution.

“In my judgment, there was in fact, no case for the district judge to have recused himself 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.

“The very fact that it took some considerable prompting by the judge before the claimant belatedly applied to recuse him, and in circumstances where the party most affected – the defendant – never took the point, is some evidence of that…

“Indeed, the district judge accepted that if the amount of the fees claimed had been small, it would not have been a problem, rather it was the amount in issue. But I do not see that as a relevant distinguishing factor here. It is not unknown for judges to have to deal with costs of solicitors or barristers, who have now gone on to the bench.

“The fair-minded observer would surely expect both parties to act professionally in the sense that the costs judge would assess in the normal way, without regard to the identity of the lawyer involved. And the lawyer involved, now a judge, would not objectively be expected to castigate the costs judge in some way, if he or she felt that in the event, too little was allowed.”

However, given that the issue had become “so elevated”, the better course in the circumstances was still to hive off that part of the costs assessment to another costs judge, if necessary in Leeds, to ensure there was enough distance, Waksman J said.

He went on to reject the claimants’ claim that the DJ should recuse himself from the whole case: “There is, in my view, no basis for saying that his handling of the rest of the costs assessment is tainted by apparent bias.”

Both Waksman J and in his earlier ruling DJ Jenkinson were particularly critical of the claimants citing an unidentified retired judge saying the circumstances rendered a clear case for recusal.

The High Court judge said: “I agree with the district judge that the making of such a statement was inappropriate. I also think he was entitled to use the word unprofessional, in the sense that 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.”

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