To recuse or not to recuse: A brief overview of alleged judicial bias

Published 9 mayo 2017

In considering the well established principles outlined in Porter v Magill [2002], the Court of Appeal has recently (in the case of Willmot v Rotherham NHS Foundation Trust [2017] EWCA CIV 181) reaffirmed their view that, when considering judicial bias, it is necessary to consider the circumstances of the case, overall fairness, and apply the test of objectivity. The judge's decision must not only be independent and free from bias, it must also appear to be free from bias to a fair minded and informed observer.

Willmot v Rotherham NHS Foundation Trust

Willmot v Rotherham NHS Foundation Trust [2017] EWCA CIV 181 concerned the decision of an orthopaedic surgeon to carry out an uncemented total knee replacement (which is appropriate to treat osteoarthritis but is not appropriate where a patient suffers from seronegative arthritis) when operating on Mrs Willmot in 2008.  Although, Mrs Willmot was diagnosed with seronegative arthritis in 2013, it was alleged that the orthopaedic surgeon suspected it at the time of surgery in 2008, and therefore should not have proceeded with the surgery at all or, alternatively, he should not have used an uncemented implant.

The matter came to Trial in March 2015 before HHJ Moore sitting at the County Court in Sheffield. During the opening, it was explained by the judge that he had undergone a resurfacing procedure on his own knee and he was familiar with the science and processes of knee surgery. His own view was that there was evidence that cementless implants (which Mrs Willmot had) could be more beneficial than the cemented type, but he would give the experts the opportunity to address him on the point.

HHJ Moore was critical of both experts for failing to provide literature to support their respective views and, during the course of hearing expert evidence from Mrs Willmot's expert in orthopaedic surgery, he expressed his displeasure that the expert shook his head in disagreement with his view that cementless implants are likely to be used more frequently in the future with knee replacements.

Mrs Willmot's legal representatives applied for HHJ Moore to recuse himself on the basis that the knowledge he held put him in conflict with the views held by Mrs Willmot's expert (that an uncemented implant should not have been used), creating a perception of bias. That application was dismissed as the judge considered he was able to listen to the evidence fairly and independently. The claim was dismissed at first instance. A lengthy judgment was provided in which HHJ Moore concluded it was reasonable to diagnose the Claimant with osteoarthritis (which Mrs Willmot had been diagnosed with prior to the surgery) and operate using an uncemented implant.

Appeal

Mrs Willmot appealed the decision on the basis that her expert evidence had been incorrectly rejected and that it should have been preferred to the Defendant's expert evidence. Therefore the Court of Appeal was invited to find either:

• The duty of care owed to her was breached as she should not have undergone an uncemented knee replacement, and the Court of Appeal should find in her favour on that issue; or
• There were serious procedural irregularities in the way the judge conducted the Trial, given his repeated references to his own knowledge of uncemented knee implants and his approach to hearing Mrs Willmot's expert evidence, (he concluded that Mrs Willmot's expert in orthopaedic surgery was disingenuous and set an unreasonably high "ivory tower" standard of care). Mrs Willmot alleged unfairness and an objective appearance of bias and invited the Court of Appeal to Order a retrial before a different judge.

Both strands of the appeal were considered by Lord Justice Sales, Lord Justice McCombe and Lord Justice Jackson. In dismissing Mrs Willmot's appeal, Lord Justice Sales giving the lead judgment noted:

1. It was unwise for HHJ Moore to refer so extensively to his own experience of knee surgery and his background reading on the subject. This gave rise to concern that he might not be confined in his approach to the evidence adduced before him. It also gave rise to the recusal application.
2. The concern that HHJ Moore did not base his judgment on the evidence adduced was unjustified. Nothing the judge said or did gave an objective appearance of bias or predetermination of matters addressed in the evidence. He was right to refuse the recusal application. At all stages, he made it clear that he had expressed no definitive views about any aspect of the case. There was no unfairness, or appearance of unfairness, in his approach.
3. The judge at first instance was entitled to find that Mrs Willmot had failed to show on the balance of probabilities that at the time of the operation she had seronegative arthritis. He was entitled to prefer the Defendant's evidence over Mrs Willmot's evidence and find in favour of the Defendant on breach of duty.

Learning Points

Ultimately, the Court of Appeal dismissed Mrs Willmot's appeal based on judicial bias, determining that nothing the judge said gave an objective appearance of bias or a predetermination of the matters addressed in evidence.

The case is a reminder of the principles set out in Porter, which illustrate that to succeed with establishing  a perception of bias, a fair minded and informed observer having considered the facts would conclude that bias was present. Lord Justice Sales concluded that was not the case in Willmot and the judge listened to the issues impartially before giving a fair and impartial judgment. Lord Justice McCombe and Lord Justice Jackson agreed with his view.

If you want discuss this article with someone in more detail, please contact Liam Riley on +44 (0)113 251 4960 or
lriley@dacbeachcroft.com.