E. Hirschfield (Née Shalome) v Abacus (C.I.) Ltd, A.O. Dart (as Administrator Pendente Lite of The Estate of H.J. Hirschfield, Deceased), M.H. Hirschfield and G.A. Hirschfield

CourtRoyal Court
JudgeSouthwell, Commr.:
Judgment Date04 December 2000
Date04 December 2000
Southwell, Commr.:
pendente lite

Miss J. Martin for the representor;

J.P. Speck for the third and fourth respondents;

The other parties did not appear and were not represented.

Cases cited:

(1) Esteem Settlement, In re, 2000 JLR N-41, considered.

(2) Glazebrook v. Housing Cttee., 2000 JLR 301.

(3) Hirschfield v. Philip Sinel & Co., 1999 JLR 55.

(4) Locabail (UK) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451; [2000] 1 All E.R. 65; (1999), 149 New L.J. 1793.

(5) Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd., 1998 JLR 173, followed.

(6) R. v. Bow St. Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 2), [2000] 1 A.C. 119, [1999] 1 All E.R. 577.

(7) R. v. Gough, [1993] A.C. 646; [1993] 2 All E.R. 724; [1993] Crim. L.R. 886; (1993), 97 Cr. App. R. 188; 157 J.P. 612; 157 J.P. Jo. 394; 137 Sol. Jo. (L.B.) 168, not followed.

(8) Sinel, In re, 2000 JLR 18.

(9) Smith (A.E.) & Sons Ltd. v. L'Eau des Iles (Jersey) Ltd., 1999 JLR 319.

(10) South Africa (President) v. South African Rugby Football Union, 1999 (4) S.A. 147, followed.

(11) States Greffier v. Les Pas Holdings Ltd., 1998 JLR 196.

Additional cases cited by counsel:

Esteem Settlement, In re, 2000 JLR N-6.

Qatar (State) v. Al Thani, 1999 JLR 118.

Texts cited:

Kerridge, Wills made in suspicious circumstances: The problem of the vulnerable testator, 59 Cambridge Law Journal 310 (2000).

Courts—récusation—apparent bias—judge's criticism of advocates for conduct falling below expected high standards insufficient, without more, as basis for application for récusation in later cases

Courts—récusation—application for récusation—application to be made early in proceedings and certainly before directions hearing

Courts—récusation—apparent bias—"reasonable suspicion" test most appropriate—whether reasonable, objective and informed person, having regard to all facts, considers that real suspicion or apprehension of bias, i.e. judge might unfairly favour or disfavour one party—court to regard with caution—burden on applicant to establish

Courts—récusation—refusal of application—although récusation refused, judge may decline to sit if applicant's advocate has given applicant serious concern about trial

Advocates—duties to court—knowledge of client's documents—duty owed to client and court to ensure that aware at early stage of relevant documents in client's possession

The representor sought the récusation of the Commissioner from presiding over the proceedings.

In earlier proceedings before the Royal Court, over which the Commissioner presided, S (an advocate) was prohibited from continuing to act for the representor. The Commissioner later gave directions as to the conduct of proceedings and a hearing was fixed for the present date. Ten days before the hearing, the representor informed the Judicial Greffe of her intention to issue a summons seeking the recusal of the Commissioner, on the grounds of apparent bias against S, who was to appear as a material witness for her.

The representor submitted that the Commissioner should recuse himself on the grounds of (a) apparent bias against S, that bias being set out by S in an affidavit, in which he complained of (i) hostility towards him in the hearing of prior proceedings in the Royal Court (the Commissioner and two Jurats), where the court criticized him for simultaneously appearing as an advocate and as a witness, (ii) the conduct of a hearing before the Court of Appeal (the Commissioner and two other Judges of Appeal), so far as concerned his questioning by the Commissioner and the judgment given, which criticized him for being unaware of the extent of his client's documentation, and (iii) the Commissioner's conduct in relation to three other Court of Appeal cases in which he had been critical of S's handling of the case; and (b) the possibility that the Commissioner would have an influence over the Jurats' decisions relating to S's evidence.

Held, refusing the application but nevertheless agreeing not to sit at the trial:

(1) There was no question of the Commissioner being biased against S in his position as a material witness, as viewed objectively by a reasonable observer with full knowledge of the correct facts. It would be for the Jurats to reach their conclusions on his and the other witnesses' evidence and, although in theory the Commissioner could be involved in the finding of facts if the Jurats were to disagree, that was a very unlikely outcome. In addition, the application for recusal should have been made significantly earlier than it was and certainly not later than the directions hearing (page 425, lines 27-31; page 432, line 44 - page 433, line 11).

(2) The "reasonable suspicion" test for the determination of apparent bias would be applied, as being the easier for the applicant to meet and also the more appropriate, having particular regard to the case-law of the European Court of Human Rights. The test was whether a reasonable, objective and informed person, aware of and having regard to all the correct facts, considered that there was a real suspicion or apprehension of bias, in that the judge might unfairly favour or disfavour the case of one of the parties. The burden was on the applicant to establish bias. No application for récusation should be accepted without strong grounds to support it, and judges should not accede too readily to such applications. "Judge shopping" should not be permitted (page 423, line 33 - page 424, line 43; page 426, lines 5-18).

(3) It was necessary for the courts to be able to criticize advocates appearing before them when their conduct fell short of the high standards expected. If an advocate regarded any such criticisms as invalid, he could so submit either at the hearing or by a subsequent letter, as was the accepted practice. Such criticisms could not, without more, constitute the basis for an application to recuse a judge, as this would interfere with the judges' ability to make necessary criticisms. All the criticisms made by the members of the Court of Appeal, viewed objectively and with the benefit of hindsight, were justified and should have been accepted by S (page 431, lines 6-33).

(4) S's complaints about the hearings before the Court of Appeal of which the Commissioner had been a member were misconceived because (a) they were personalized against the Commissioner although all three judges engaged in the relevant dialogue; (b) they were founded on a misunderstanding of the vigorous nature of the appellate dialogue; and (c) they were directed only to cases which S lost. The same arguments applied to the proceedings in the Royal Court. Furthermore, it was an elementary part of the duties an advocate owed to his client and to the court to take steps to ensure that he was aware at an early stage in any civil proceedings of the relevant documents in his client's possession (page 431, line 34 - page 432, line 14).

(5) The application would also have failed had it been made in relation to the appearance of S as an advocate. An advocate had to accept, and seek to remedy, justified criticisms made by the court and there was an established route for dealing with any criticisms which an advocate believed to be unjustified (page 432, lines 36-43).

(6) Nevertheless, the Commissioner would not sit at the trial. The representor was not young, was a widow and in poor health. Faced with S's affidavit, it was entirely understandable that she was seriously concerned about the trial of the proceedings. In the light of this concern, the Commissioner would ask the Bailiff to nominate another judge after the hearing of the interlocutory applications (page 433, lines 19-28).

SOUTHWELL, COMMR.: In these cases Mrs. Eliza Hirschfield has applied by summons for me to recuse myself as a Commissioner.

Advocate Jonathan Speck has appeared on behalf of Malcolm and Graham Hirschfield, Mrs. Hirschfield's step-sons, not to support or to oppose the application, but rather in the position of an amicus. I am indebted to Miss Martin and Mr. Speck for their clear and helpful written and oral submissions.

Attempts to recuse judges in this jurisdiction have become rather frequent. The governing legal principles are reasonably clear:

(a) If a judge has a direct personal interest in the outcome of proceedings, bias is presumed to exist and the...

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