Full case report
Cruddas v Calvert & Others (No.3)
Reference  EWHC 1791 (QB)
Court Queen's Bench Division
Judge Tugendhat J
Date of Judgment 26 Jun 2013
Libel – Malicious Falsehood – Trial Judge reversed by Court of Appeal in relation to pre-trial ruling – Recusal application – appearance of bias
The Claimant was the former Treasurer of the Conservative Party. On 15 March 2012 he had been made the subject of subterfuge and covert recording by the First and Second Defendants (members of the Insight team of theSunday Times) who posed as potential donors to the Conservative Party.
The Claimant sued on the articles published on 25 March 2012 by the Defendants. He brought claims for libel and malicious falsehood.
In relation to the libel claim, the Defendants relied on a defence of justification contending that the articles were true in lower meanings. In the alternative, the Defendants contended that the words complained were true in substantially one of the meanings complained of by the Claimant.
In relation to the malicious falsehood claim, the Defendants denied malice, relied upon their justification defence to rebut falsity and contended that the publication was not likely to cause the Claimant pecuniary damage within s.3 Defamation Act 1952.
On 5 June 2013 the trial Judge, Mr Justice Tugendhat, made rulings as to the meanings of the Articles complained of both for the purposes of the Claimant’s claim in libel and malicious falsehood. In consequence he entered judgment for the Claimant on his libel claim and ordered damages to be assessed and an injunction to prevent further publication of the Articles.
On 21 June 2013, the Court of Appeal reversed the Judge in relation to one finding as to the single meaning for the purposes of defamation and also restored the Defendants’ defence of justification ordering that this should be tried. On the same day as the Court of Appeal handed down its judgment, the Defendants’ solicitors wrote to the Trial Judge to ask him to consider recusing himself on the grounds of apparent bias.
Whether the Judge should recuse himself.
Refusing the recusal application:
(1) The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased (Magill -v- Porter  UKHL 67;  2 AC 357 ).
(2) There an many instances where a Judge has to reconsider a case following a successful appeal against one of his orders. Each case will depend on its own facts, but merely being reversed on appeal is not sufficient to raise a real possibility of bias in the mind of a fair-minded and informed observer (JSC BTA Bank -v- Ablyazov (Recusal)  EWCA Civ 1551;  1 WLR 1845 , -).
(3) Judicial officers should not too readily accede to applications to recuse themselves on the basis of apparent bias as otherwise it risks encouraging litigants to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour (In re JRL ex parte CJL  HCA 39; (1986) 161 CLR 342, 352).
(4) Here, the Judge had not heard any evidence and had made no findings of fact. He had been reversed on a point relating to meaning by the Court of Appeal. Any judgment delivered in the case would be fully reasoned. No fair-minded and informed person could think that the decision in the case would not be on the basis of the reasoned judgment but a product of bias of the Judge against the Defendants.
The judgment contains a useful summary of the law relating to recusal for apparent bias. Something more is required than merely a Judge having been reversed on appeal to lead a fair-minded and informed observer to conclude that there is a real risk of bias on the part of the Judge.
Slater & Gordon for the Claimant; Bates Wells Braithwaite for the Defendants
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