by Daniel Clark, 13th August 2024
What can a party do if they feel that, during the course of a hearing, they were “silenced and bullied and berated” by the judge? What happens if a litigant in person thinks that the judge is taking advantage of her lack of representation and “colluding” with the local authority?
These are the concerns held by N, who is the daughter of a protected party (JS) at the centre of long-running Court of Protection proceedings.
What N did was to make an application for the judge hearing the case to recuse himself, i.e. that he step down as a judge in the case and that another judge take his place.
I observed the hearing (COP 13631757) before DJ Moss on Tuesday 23rd July 2024. He was sitting (remotely, via MS Teams) at Manchester Civil Justice Centre. N, the applicant, represented herself, and was joined by two of her brothers. The respondent, Salford City Council, was represented by Robert Darbyshire, of Nine St John Street.
When considering whether a judge should recuse themselves on grounds of apparent bias, the test is whether‘a fair minded and informed observer [would] conclude that there was a real possibility, or a real danger’ of bias (my emphasis)
I am writing this blog from the perspective of a fair-minded observer – though I am conscious that the information available to me about what happened in the previous hearing is limited: I didn’t observe it and don’t have access to the bundle.
I will (1) briefly summarise the history of this case up to the date of this hearing; (2) overview the law on recusal applications; (3) give my own assessment of what happened in this hearing; before (4) turning to some broader issues
1. History of the case so far
This case has a history that stretches back to 2021. JS is the protected party, though very little was said about her during this hearing. She has four children from a first marriage (N and three brothers, two of whom were present at the hearing); and two (adult) children from a second marriage, who were not present in court.
In the words of the judge, “the relationship between the two sets of siblings has broken down”. JS now lives with the children from her second marriage. I
n 2021, applications were brought concerning JS’s property and affairs, the result of which was that a panel deputy was appointed.
In November 2023, N filed an application with the court that amounted to a personal welfare application. It was described by the judge as not altogether clear what N was asking the court for help with – beyond help “to act in her mother’s best interests”.
There were allegations of negligence and bullying, as well as an allegation that social services had made decisions that deprived JS of her rights (I’m not sure which ones). It also became clear that N and her brothers alleged that access to their mother was being restricted by one or both of the siblings from the second marriage with whom JS lived.
On 23rd April 2024, the case was listed before DJ Moss for one hour. He had heard the case in 2021, and (one would assume) was familiar with the family dynamics.
N and her brothers allege it was at this hearing (which I did not observe) that that DJ Moss demonstrated a bias against them, which means he should recuse himself from hearing the rest of the case.
Her application was submitted at the beginning of May 2024, and the next hearing in the case was already listed for 7th June. This next hearing was then adjourned – at N’s request as she was dealing with “exceptional personal circumstances” – to 23rd July 2024. The knock-on effect of this was that the already-listed hearing about JS’s health and welfare had to be adjourned until September, since DJ Moss had to hear the recusal application first.
2. Recusal applications: When should a judge recuse himself?
Recusal applications are made when a party believes that a judge is biased against them. But what does bias look like, and how can that be decided?
It should go without saying that judges with a financial interest in a case are automatically disqualified from hearing it. If they have had some involvement with the parties in the past, they may (depending on the circumstances) be disqualified.
In Mengiste & Anor v Endowment Fund for the Rehabilitation of Tigray, Lady Justice Arden remarked: ‘A judge may recuse himself when a party applies to him to do so. A judge must step down in circumstances where there appears to be bias, or, as it is put, “apparent bias”. Judicial recusal is not then a matter of discretion’(§2). LJ Arden also identified the test for determining apparent bias, which is ‘if a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased, [then] the judge must recuse himself’ (§4).
The character of the fair-minded observer is not simply determined by somebody who thinks they are fair-minded. In Lawal v Northern Spirit Ltd, the House of Lords commented that the fair-minded observer would be ‘sufficiently well informed’, and not uncritical. They will not be complacent but will also not be ‘unduly sensitive or suspicious’ (§22). Instead, they will take ‘a balanced approach’ (§14).
How exactly a fair minded and informed observer might think is open to some judicial interpretation.
In 2020, Mrs Justice Steyn was asked to recuse herself because of her professional relationship with one of the barristers (she had previously been a member of the same chambers) and because she was the subject of a complaint made by the claimant’s mother. On this occasion the judge declined to recuse herself. She considered that a fair-minded and informed observer would know that judges are often appointed from the Bar, and it is therefore inevitable that a judge will encounter a member of their previous chambers at some point making submissions before them. While I understand the argument raised, it is easy to see why a litigant may have perceived the judge to be biased.
Of course, it is not easy to see the merit in every recusal application.
Andrew Griffiths – the former MP who was found by a Family Court judge to have abused and raped Kate Griffiths, his then wife – asked Mrs Justice Arbuthnot to recuse herself from hearing the case. This was on the grounds that Griffiths knew Arbuthnot J’s husband well, and that her husband may have expressed a view on the ‘sexting scandal’ that saw Griffiths’ resignation. In response, Arbuthnot J said that she never met Andrew Griffiths, that her husband had to search for him on Wikipedia, and that the objection to her being the judge was ‘tenuous’. The appeal was rejected because she did not think that an informed person, who knew all of the facts, would conclude that there was a real possibility that she was biased.
It is my view that the blogs published by the Open Justice Court of Protection Project are a good demonstration of how this fair-minded observer might think. They sometimes praise the practice of the Court of Protection, and at other times they are critical of it. I don’t think that anybody could describe these blogs as ‘unduly sensitive or suspicious’ – though there is often limited information available to us, particularly because we rarely have sight of court documents (and sometimes are not sent position statements despite our requests). It’s hard to be informed when information is withheld from us.
Sometimes, the Court of Protection makes it impossible for us to be fair-minded or informed observers no matter how hard we try. For example, Claire Martin and Nell Robson have blogged about a case concerning a caesarean section for a woman who did not always believe she was pregnant. They had read about the previous hearing, and were keen to see the evidence being tested. However, what was originally planned for a full day hearing became a 14-minute hearing. In the blog, they express concern that ‘this hearing proceeded as if the legal system had no idea that members of the public might feel concerned about a court-authorised caesarean or might be critical of this decision’.
3. The recusal hearing
3.1 The ‘neutral’ position of Salford City Council
At the start of the hearing, it was revealed that N had not actually received the position statement from the local authority, Salford City Council. The judge explained that the local authority “is taking a neutral position. He essentially says that it’s a matter between you and the court”. As Counsel for the local authority put it, “we have no dog in this fight”.
While this is doubtless not the first time this has happened, it was the first time that I’d observed a hearing where one party had not seen the position statement of another party.
N declined the offer to see the position statement and, while the judge did “go through it briefly” (his words), this struck me as wholly inadequate. It is surely in the interests of justice that a party is provided with another party’s position statement. Rather than asking if N wanted to see it, which may lead to a litigant-in-person feeling that they are delaying the court process, the judge should simply have paused the hearing so that N could read it.
This is not beyond the realms of possibility. In a separate hearing that I observed recently, the judge adjourned the hearing briegly to allow a litigant in person sufficient time to read the Transparency Order (which she hadn’t seen before). That happened in a hearing listed for one hour. The case that this blog concerns was listed for two hours, leaving ample time to allow N to read the position statement.
Once the hearing was concluded I asked for, and received, a copy of the local authority’s position statement. This means that, in writing this blog, I know more about the local authority’s formal position than N did at the start of the hearing.
During the hearing, the judge explained that the position statement sets out a brief case history, and the case law on recusal (which I have drawn on in the previous section). Finally, it said that the local authority has “no view about this application because it has nothing to gain or nothing to lose” if the judge recuses himself. The local authority notes that there are very few judges who hear Court of Protection cases in Manchester, and “does not want to engage in what it describes as ‘forum shopping’”.
The judge later clarified, at N’s request for clarification, what ‘forum shopping’ means: “you can’t pick and choose judges, and if you don’t like one you can’t really object and say you’d sooner someone else”.
At the conclusion of the judge’s summary, N noted that “it appears to me that the statement doesn’t appear to be neutral”. I agree with her. To me, the use of the phrase “forum shopping” is the very opposite of neutral. It is laced with bias because it implies N’s recusal application is based not on its own merit but on the fact that she is looking for a judge who might be more likely to agree with her.
Reflecting on the hearing afterwards, I wonder whether N might have been able to explain more clearly why the statement didn’t seem neutral if she’d the opportunity to read it herself. The court must do all it can to ensure litigants in person have an equal access to justice, as discussed in the Equal Treatment Bench Book. Asking “do you want to see it” places a burden on a litigant in person. The judge should have acknowledged that it was unacceptable for a litigant in person not to have received the document and made time for her to read it.
3.2 “Silenced and bullied and berated”
The recusal application rested on a claim of bias at the last hearing. Prior to the previous hearing, it was explained that N had filed a bundle which contained information she felt was supportive of her application. She alleged that, at the hearing, she asked whether this bundle had been read by the judge, “and I was very much shouted at and berated for asking that question”.
N also returned to this later in the hearing, describing to the judge how she had “felt very silenced and bullied and berated for asking. You could have explained to all parties why you were refusing to look at the evidence in the bundle. That wasn’t explained – and dismissed. I was berated and I was accused of interrogation”. Her brother, J, also described being “spoken to like that. You accused me of interrogating you also”.
These feelings of bias were compounded by the fact that, as the judge put it in his summary of her application, N claims that the judge “continually spoke over her sentences, and … did so to all of the persons who supported her”.
She further alleges that the judge did not speak over the local authority’s representative, resulting in a perception that the judge “orchestrated the hearing with biased intent”, in favour of the local authority.
Indeed, the application itself went so far as to claim that the judge “took advantage of [N’s] lack of representation”, and “colluded” with the local authority by, in effect, replacing it as the applicant in the proceedings. This essentially makes the local authority the agenda-setter.
With a glimmer of irony, there were moments during this hearing where the judge did appear to speak over N. However, this may well be as a result of technological issues. I know from experience how difficult it can be to ensure that nobody talks over anybody during an online meeting. There is also sometimes a delay in transmission which makes overlapping speech sometimes inevitable. But, of course being interrupted is something that litigants in person are very alert to.
It may also be the case that judges are accustomed to being addressed by barristers and solicitors who are trained in how to address a court, and also have lots of experience doing so. Where a barrister might stop, a litigant in person might continue. Where a barrister might sit with a judge’s silence, a litigant in person might see the silence as an invitation to continue talking. Where a barrister knows whose turn it is to speak next, a litigant in person often doesn’t.
Of course, speaking over someone and interrupting them can also be an indication and effect of judicial bias, as N alleges in this case.
After a brief pause for consideration, the judge delivered an ex tempore judgment. “hHowever strongly those criticisms [of the judge] are felt”, he did not think that a “fair minded observer” would perceive a possibility of bias. In fact, he found that the hearing in April allowed him to ascertain what the application was about, and to recommend that N seek legal advice. Furthermore, while he did (he said) allow N to speak at length, he was also confined by the fact that the hearing was listed for an hour, and had to ensure he had enough information to give further directions. I think the implication was that he may have spoken over N, but this was in order to ensure the hearing could conclude at a satisfactory time.
N’s application that the judge recuse himself was therefore dismissed.
4. Comments from a ‘fair-minded observer’
I am not in a position to offer any commentary on the substance of the judge’s decision. I did not observe the hearing where this behaviour was alleged to have taken place, and nor do I have any knowledge of the hearings prior to this.
I did however feel as though I was watching a hearing ‘through the looking glass’ – a world both recognisable and yet turned inside-out – when I realised that the judge who was alleged to have engaged in bad behaviour was considering the application to recuse himself.
I have since learnt that it’s quite common for a judge to hear an application to recuse her or himself. For example, in Re C (A Child), Mrs Justice Judd was overheard (on a video link), describing a mother as “trying ‘every trick in the book’ in order to avoid answering difficult questions”. Judd J refused an application to recuse herself. The Court of Appeal found that, in actual fact, there were grounds for recusal, and the case was remitted back to the Family Division for another judge to hear.
This case goes to show that there is a process for appeal if a party feels that they have been treated unfairly during the recusal application. However, I can well imagine that this process would become costly, and I wonder how many litigants in person would actually take up the opportunity to appeal.
This case also demonstrates that it’s not just in the Court of Protection where judges decide their own recusal applications. As those familiar with the Post Office Scandal will be aware, the Post Office had (in 2019) made an application for Mr Justice Fraser to recuse himself as the managing judge. On that occasion, the judge not only refused the application but also noted that the delay in bringing the application was such that it constituted ‘an unequivocal waiver of any right the Post Office might have had to ask me to abandon the Horizon Issues trial and recuse myself’.
I should be absolutely clear that I am making no allegation of wrongdoing against DJ Moss for taking the course of action that he did in hearing his own recusal application.
Nevertheless, the process of a judge who is alleged to be biased considering an application to recuse himself strikes me as rather like marking one’s own homework. Bias can be overt, but it can also hide in the recesses of the mind. If a judge is biased but not aware of that bias, how can he be expected to make a decision about it?
Let’s look at this another way. I have been doing some teaching of university undergraduates for the last year. If a student made a complaint about my conduct, would it be acceptable for me to deal with that complaint? Of course not. This hypothetical student could reasonably claim that I would be unable to consider my own behaviour fairly.
How, then, can it be acceptable for a judge to consider a recusal application about himself? This seems completely contrary to the spirit of fairness.
Some people may reply that the shortage of Court of Protection judges means that there is no other choice. This may even sound like a compelling and fair response to many other people. That being said, I suspect it only sounds like a reasonable response when you’re not the one who thinks a judge is biased against you.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.
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