Bias Apparent, Not Real, Rules Court of Appeal

Just because a court ruling seems harsh does not mean that the judge making it was biased, as is illustrated by a decision by the Court of Appeal that a judge was wrong to disqualify himself from continuing to hear a highly contentious case after he was accused of giving the appearance of bias.

The judge had long been involved in managing the litigation before ruling, in a highly critical 559-paragraph judgment, that a financial trader was personally liable to repay more than $170 million in respect of two major investment frauds.

The successful parties subsequently launched an application to have the trader sent to prison for contempt of court. He was accused, amongst other things, of deliberately giving false information and breaching an asset freezing order. However, the judge stepped down from hearing the case after the trader made a number of allegations of partiality against him and argued that his continued involvement would create a clear appearance of bias.

In overturning the judge’s decision, and reinstating him as the judge in charge of the case, the Court noted that such difficulties not infrequently arose in long-running and complex cases such as this. The matter had raised ‘an important point of law’; however, there was no reason to suppose that the judge would not bring an open mind to bear on the issues. The judge himself believed that the trader’s concerns were groundless and, in the circumstances, the Court ruled that his decision to disqualify himself was ‘defective’.

In highly contentious litigation, it is easy for the loser in court to regard the judge as biased against them, and a strongly-worded judgment can reinforce that view. However, it is very difficult to convince the Court of Appeal that the judiciary harbours bias.

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