“It is important to make clear the following. Although in my judgment, the Defendants have had the opportunity to provide further evidence and information in advance of the hearing than the information which they did, this will be irrelevant for the case at trial. Likewise, the fact that I have come to the judgment for the purpose of an interim injunction only that the case is of sufficient strength to justify the making and the continuation of the injunction including about not living on the site, the issues at trial are entirely different. It is precisely to accommodate the submissions of the Defendants that there is to be a speedy trial. In making his application for cross-examination, Mr Masters recognises, as does the Court, that it happens frequently that a case which appears strong on paper changes its complexion following cross-examination. Of course, that might work to the advantage of the Claimant or the Defendants. Further, whether the paucity of evidence at this stage is justified or not, at trial the Defendants will have the opportunity to present a much fuller case. The Claimant also has the opportunity to supplement its case. In short, the trial of the action will be what Mr Masters called the full Porter hearing, and this is a very different exercise from the interim hearing. The Court will try the matters on the basis of the evidence as presented, both the written evidence of witnesses and the documentary evidence and with the advantage of observing cross-examination of witnesses. The trial will not be by reference to the considerations at this interim stage, but by reference to all the evidence and argument at that stage. The parties have agreed to most of the directions. There is a question as to the time for the witness statements. It has been agreed that I should try the case. That continuity will enable the Court to case manage through to and including trial. In my judgment, this ought to be before the end of term. I say this because I wish to have the PTR on the last day or two of term since I do not know if I shall be sitting in the first week of August. That involves some minor changes to the timetable.”
“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… that the tribunal was biased”
“…By contrast, a real danger of bias might well be thought to arise if …. on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v. Kelly (1989) 167 C.L.R. 568 ); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.”
“The authorities suggest the following conclusions. First, although the principles of apparent bias are now well established and have not been in dispute in this case, the application of them is wholly fact sensitive. Secondly, a finding of prejudgment has been rare. Livesey and Timmins v Gormley (one of the Locabail cases) are examples, but their circumstances bear no relationship to the circumstances of this case. Thirdly, although discussion of pre-judgment issues are not uncommon in Strasbourg jurisprudence, they tend to fall within the criminal sphere where special problems arise in civil law countries through the use of examining magistrates at earlier stages of the criminal process, and the use of judges to decide guilt at both trial and appeal levels (the appeal is a complete rehearing of guilt and innocence). Mr Bear has told us that he has as yet found no Strasbourg authority in which a doctrine of pre-judgment has been used to disqualify a judge in civil proceedings. Fourthly, although no doubt matters of mere convenience cannot palliate the appearance of bias, and the application of the doctrine of apparent bias is not a matter of discretion as distinct from assessment on all the facts of the case), it is relevant to consider, through the eyes of the fair-minded and informed observer, that there is not only convenience but also justice to be found in the efficient conduct of complex civil claims with the help of the designated judge. Fifthly no example of a designated judge being required to recuse himself or herself has been found. In Arab Monetary Fund v Hashim Bingham MR said that the replacement of Hoffmann J by a different judge for trial was an “indulgence to Dr Hashim”, where he had shown “no grounds whatsoever for a change of judge”
“In a case such as this, in which interlocutory applications proliferate, it may well be that one side fares more successfully, perhaps much more successfully, than the other. There are a number of possible explanations for this, the most obvious being that the successful party has shown greater judgment, determination and knowledge of the rules than its opponent. Mr Ross-Munro accepted, as we understood, that no inference of apparent bias could be drawn from the fact that most, or all, interlocutory applications had been decided against Dr Hashim. We agree….”
"There is already a certain amount of authority on the question whether a judge hearing an application (or a trial) which relies on his own previous findings should recuse himself. The general rule is that he should not recuse himself, unless he either considers that he genuinely cannot give one or other party a fair hearing or that a fair-minded and informed observer would conclude that there was a real possibility that he would not do so. Although it is obviously convenient in a case of any complexity that a single judge should deal with all relevant matters, actual bias or a real possibility of bias must conclude the matter in favour of the applicant; nevertheless there must be substantial evidence of actual or imputed bias before the general rule can be overcome. All the cases, moreover, emphasise, that the issue of recusal is extremely fact-sensitive. "
“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties 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.”
“The law reports are replete with cases which were thought to be hopeless before investigation but were decided the other way after the court allowed the matter to be tried.”