Court of Appeal: judges working as barristers do not have to disclose “every ongoing piece of litigation”

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23 December 2015


Sales LJ: deputy judge bound by client confidentiality

Appeal judges have ruled that part-time judges who are working as barristers do not have to reveal details of “every ongoing piece of litigation” they are dealing with to ward off accusations of bias.

Lord Justice Sales said that if there was “any real risk” of a conflict of interest, deputy judges could “naturally be expected” to identify the problem and recuse themselves.

“The addition of the extra feature that the deputy judge might be leading other barristers in such other ongoing litigation does not change this analysis,” Sales LJ said.

“I should also mention that the judge was bound by obligations of confidentiality owed to her client in the other case and was therefore not at liberty to go further than she did unless there was a strong public interest to do so.”

Sales LJ was ruling on a recusal application made a brother during a dispute with his sister over their mother’s will.

Catherine Newman QC, a practising barrister based at Maitland Chambers and part-time deputy High Court judge, heard the case last year and ruled against the brother.

Sales LJ said: “At the commencement of the trial an issue arose whether the judge should recuse herself on grounds of appearance of bias, on the footing that in the course of her practice as a barrister she was engaged in long-running litigation in which she was leading the barrister appearing as counsel for the sister, Mr Jordan Holland.

“It was said on behalf of the brother that this gave rise to a legitimate concern that the judge would favour the sister in deciding the case.”

Ms Newman heard the recusal application and dismissed it, before hearing the trial. At the end of trial, she gave her reasons for dismissing the recusal application.

Sales LJ said Ms Newman alerted the brother’s lawyers to the fact that she was leading Jordan Holland, the junior barrister representing the sister, in a separate piece of litigation. Sales LJ said the litigation was “completely unrelated” and Ms Newman and Mr Holland did not practice in the same chambers.

Delivering judgment in Watts v Watts [2015] EWCA Civ 1297, Sales LJ he could not accept the arguments put forward by counsel for the brother.

He said the “notional fair-minded and informed observer”, knowing the professional standards of part-time judges, would understand that if a deputy judge found there was a “real risk” that her ruling in one case would have a bearing on other litigation in which she was involved as counsel, she would immediately recuse herself.

“In such a case it would be clear that her interest as a barrister would conflict with her duty as a judge and, since that would be clear, it would be obvious that she could be expected to identify such a conflict and then act ethically and in accordance with her professional obligations by recusing herself.

“This would be so whether or not she happened to be instructed along with another counsel in the case, and whether or not that counsel was now appearing as counsel in the case in which she was to sit as a deputy judge.

“A part-time judge does not have to reveal details of every ongoing piece of litigation in which she is professionally involved as counsel in order to allay suspicion whether any of them concern subject matter which overlaps with the case to be tried by her.”

Lord Justice Sales rejected the brother’s appeal. Mr Justice Cobb and Sir Stanley Burnton agreed.

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