To recuse or not? – Ghadami v Bloomfield and others [2016] EWHC 1448(ch)

jonathan_holsgrove_pi By Jonathan Holsgrove

Norris J has recently had to deal with an interesting case where he faced an application that he should recuse himself from a case. It also highlighted the negative impact a litigant in person can have on a case and administration of the Courts.  The case is available here.

Mr. Ghadami issued proceedings against 19 defendants for damages of £36m. 10 of the Defendants applied for summary judgment against Mr. Ghadami.

At the start of a two-day hearing of the applications Mr. Ghadami failed to attend and instead sent his son to seek an adjournment. This was not granted and the hearing continued in his absence with the Deputy Master deciding to also consider the cases against two other defendants in addition.  The conclusion of the Deputy Master was that the claims against the 12 defendants would be struck out.  Mr. Ghadami appealed the decision refusing the adjournment and applied to set aside the orders striking out the cases under CPR 3.9.

The appeal and application came before Mr. Justice Norris with a time estimate of five days. At the start of the hearing there were two or three small piles of papers on the bench.  These included a letter addressed to the Judge.  The judge did not read that letter until the end of the hearing.  It was from the 9th Defendant and included comment that Mr. Ghadami was ‘mentally deranged’, a ‘vexatious litigant’ and had served time in prison for fraud.  The letter was read to Mr. Ghadami in court and opportunity given for him to respond in writing before the reserved judgment was given.

Mr. Ghadami’s response was to make an application asking the Judge to recuse himself from the case. This was on the basis of apparent or unconscious bias of the judge and that an informed and balanced member of the public would conclude bias was apparent and unavoidable.  12 grounds were cited in support of his contention including:

 

a) That the reading of the letter by the judge was no more than a charade.

b) That the judge had lied about when he had first seen the letter.

c) The judge had not shown any respect for Mr. Ghadami for failing to send him a copy of the letter between the hearing finishing at 1pm and the judge leaving court at 9pm.

d) The judge was biased because he could not produce the envelope that had contained the letter.

e) The photocopying of the letter by the judge was suspicious.

 

Norris J in giving judgment held that:

a) Applications for recusal involve a tension between justice being seen to be done and litigants not being allowed to choose their judges. As to the first, the Judge followed the clear guidance in Locabail (UK) Limited v Bayfield Properties [2000] QB 451 at 480 paragraph [25] that “if in any case there is real ground for doubt, that doubt shall be resolved in favour of recusal”. As to the second a judge must resist the temptation to recuse himself where it would simply be easier to do so – see Chadwick LJ in Triodos Bank v Dobbs [2005] EWCA Civ 468 at paragraph [8]

b) This exercise involved the ascertainment of all of the circumstances which bear on the suggestion that a judge is biased, and then an assessment of whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger that a judge was biased: per Lord Hope in Porter v Magill [2012] 2 AC 357 at [103].

c) The allegations made were an attack on the truthfulness of the Judge and were all contradicted by the transcript of the hearing where the letter was read. The judge had to consider if the fully informed and fair-minded observer would not have believed what the judge had said and had a real suspicion that the judge was lying. Norris J Held that such an observer would not.

 

This case is another example of the negative impact that a litigant in person can have. The application and appeal occupied the Court for more than the estimated 5 days and had evidence contained in 27 arch lever files.  Four of the five days were devoted solely to the submissions of Mr. Ghadami.  Not only was valuable court time wasted but also Norris J notes that Mr. Ghadami sought to interview Court staff and sent a ‘tide’ of unsolicited emails directly to the judge and Court staff.  This waste of court resources would, in the view of the author, not have occurred if Mr. Ghadami had been properly represented.

 

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