Solicitor judge rejects recusal call based on professional ties


Adam Johnson J: Nothing of substance in allegations

A solicitor High Court judge has rejected an application to recuse himself in a case against top City law firm Simmons & Simmons made on the basis of his support for other solicitors and tenuous links to that firm.

Mr Justice Adam Johnson, appointed to the bench last year from City giant Herbert Smith Freehills, said there was nothing in David Hinkel’s complaints to suggest bias on his part.

Mr Hinkel’s complaint against Simmons & Simmons arose out of a failed attempt to acquire an English property owned by the Republic of Iran.

He argued that, when Simmons & Simmons represented to him that it acted on behalf of Iran in the transaction, the firm acted fraudulently. He sought damages approaching £1.4m.

At first instance, His Honour Judge Dight held that Mr Hinkel’s fraud allegation was not sufficiently pleaded and that, in any case, the evidence did not justify an inference of fraud. In January, Adam Johnson J refused permission to appeal.

He returned to the case this week to dismiss six applications from Mr Hinkel which he said either did not raise any point which would justify reopening the final appeal, or sought to adduce new evidence which were or could have been available to him prior to the hearing before HHJ Dight.

The basic problem with the case was that the allegations relied on by Mr Hinkel “are all readily explicable on bases other than fraud”, he said.

The judge also explained his reasons for refusing Mr Hinkel’s application for him to recuse himself, which he said largely related to his decision to rely on statements made by Simmons & Simmons to the Solicitors Regulation Authority.

“Against that background, Mr Hinkel’s main point is that given my professional background as a solicitor, my views are ‘clouded by the belief that solicitors can do no wrong’ and my ‘support for his colleagues in the legal profession regardless of their character’.”

Mr Hinkel also submitted that Herbert Smith acted in 2012/13 for a party interested in buying the same property he sought to acquire three years later, and that the judge when in practice participated in a Financial Markets Law Committee report with a former Simmons & Simmons partner, “and must know others at Simmons & Simmons”.

Adam Johnson J said it was “entirely clear”, in light of Court of Appeal guidance in Locabail (UK) Limited v Bayfield Properties Ltd [2000] 1 QB 480, that there was “nothing of substance” in Mr Hinkel’s various objections.

Locabail makes it clear that a judge’s social, educational and employment background will not ordinarily provide a sound basis for concluding there is a real risk of bias. There is nothing in this case to take it out of the ordinary.

“Locabail also makes it clear that the receipt of previous instructions to act for or against a current party does not give rise to a real risk of bias. Thus, even assuming my former firm acted for another potential purchaser in 2012-2013 in the way alleged, that does not give rise to a real risk of bias.

“It is impossible to see how it could, given the issue in the present case, which concerns the alleged states of mind of certain individuals at Simmons & Simmons some three or four years later.”

Locabail also that said membership of the same inn, circuit, local law society or chambers was not a disqualifying factor, meaning “it is impossible to see how contact with persons from Simmons & Simmons via the Financial Markets Law Committee and the like can give rise to a real risk of bias”.




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