This is an application for leave to appeal against the judge’s dismissal of a recusal application. The application for leave claims that “The learned judge, prior to his appointment, acted as an attorney in two separates matter for a party involving very contentious issues against two of the appellant's companies. This previous involvement raises a significant concern regarding the judge's impartiality. A fair-minded and informed observer, having considered all the circumstances, would conclude that there is a real possibility of bias.”.
Additionally, the Plaintiff relies on the fact that the judge agreed to recuse in other matters, one involving the Plaintiff and another, his partner, shortly after he was appointed. There is no allegation by the Plaintiff of actual bias on the part of the judge.
Counsel for the defendants submit that the appeal is bound to fail as in all the circumstances the Court of Appeal will not conclude that there is apparent bias.
Held: The application for leave to appeal is dismissed. The Plaintiff shall pay the Defendants costs of the application to be taxed on the standard basis if not agreed.
The threshold for granting leave to appeal is relatively low. The Court of Appeal set out in detail the route to leave for appeal and the conditions for granting leave in Patricia Grand‘Lair v Etienne Dubois [2023] TCACA 11: “Permission to appeal may be given only where (a) the appeal appears to have a real prospect of success, or (b) there is some other compelling reason for the appeal to be heard. Since the test is disjunctive, the court may focus on either (a) or (b)”.
Ward CJ in The Palms Resort Limited v PPC Limited [2008] TCASC 19, identified the ‘overriding principle’ as being that the court should not lightly deprive a dissatisfied litigant of his right to appeal, since the aim of requiring leave is to screen out appeals which will inevitably fail.
I am not of the view that the proposed appeal has any prospect of success. Counsel for the plaintiff does not cite any principle of law in respect of which he says I fell into error in refusing the recusal application, but reiterates the application a second time. I was not directed to any authority suggesting that the application of the principle in Locabail (UK) Ltd. -v- Bayfield Properties Ltd & Anor [2000] QB 451, that: “… Nor, at any rate ordinarily, could an objection be soundly based on the judge’s … previous receipt of instructions to act for or against any party, solicitor or Advocate engaged in a case before him.”
I give consideration to the second ground of “some other compelling reason”. Again, to quote Thorne LA in Grand‘Lair: “It often (but not invariably) arises for consideration if the proposed appeal has no real prospect of succeeding, and includes cases where some important point of law requires clarification, or there is a point of general application requiring an authoritative decision.” Counsel did not address me on the second ground, but nothing in the application arose that I consider of value to trouble the Court of Appeal.