Bias of judges or tribunals and recusal
Bias of judges or tribunals and recusal

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Bias of judges or tribunals and recusal
  • Guide to Judicial Conduct
  • Legal test and principles applicable to recusal
  • Can a judge recuse themselves from only parts of a case?
  • What constitutes bias
  • What will not constitute bias
  • Solicitors who are also judges
  • Barristers who are also judges
  • Making an application for recusal
  • Waiver

Guide to Judicial Conduct

The bias/impartiality of those holding judicial office is addressed in the Guide to Judicial Conduct (the Guide). The Guide is:

‘…intended to offer assistance to judges ... about their conduct ... [but it] is not a code, nor does it contain rules other then where stated. Instead, it contains a set of core principles which will help judges reach their own decisions.’

The Guide highlights the following cases which considered the issue of impartiality:

  1. Locabail (UK) Ltd v Bayfield Properties

  2. R v Bow Street Magistrates ex parte Pinochet

  3. Re Medicaments and Related Classes of Goods (No 2)

  4. M v Islington LBC

  5. Lawal v Northern Spirit Ltd

The Guide states that ‘if there are circumstances which may give rise to a suggestion of bias, or appearance of bias, if possible, they should be disclosed to the parties well before the hearing’.

Legal test and principles applicable to recusal

Parties are entitled to expect that their dispute will be heard by a fair and independent court or tribunal. The court/tribunal should be impartial such that justice should not only be done, but should manifestly and undoubtedly be seen to be done. In determining whether this is the case, the test is set out in Porter v Magill, namely:

‘The court must first ascertain all the circumstances which have a bearing