Saini: Judge’s outrage was misplaced
The High Court has ordered the recusal of a circuit judge who used “intemperate language” and told a barrister that he expected to see “the organ grinder” appear at the next hearing of a case.
It said that His Honour Judge Allan Gore QC – a former president of the Association of Personal Injury Lawyers – gave the appearance of bias in his treatment of the defendant in a fatal accident claim.
Mr Justice Pushpinder Saini overturned the orders that HHJ Gore made against the defendant as well as his decision not to recuse himself from the case.
Dorman & Ors v Clinton Devon Farms Partnership [2019] EWHC 2988 (QB) featured two related claims – from the family of the man who died in the farm accident in 2014 and a fellow employee who went to his aid and claimed damages for post-traumatic stress disorder and personal injury.
The claims were not issued for three years and then they were stayed for related criminal proceedings. At trial in February this year, the farm and one individual were cleared.
The civil claims restarted and the parties sent consent orders containing directions to the court, but the judge required a hearing.
At that hearing in May in Exeter, HHJ Gore made of his own motion certain procedural unless orders and an indemnity costs order against the defendant, and directions for attendance of the senior case handler from its solicitors, DWF.
He said: “If anyone wants to say anything on the defendants’ part about this, with the greatest of respect to you Miss Clifton [counsel for the defendant], I suggest that the organ grinder is instructed to appear on the next occasion: that is the senior file handler of the defendants. Nothing less will do. Do I make myself clear?”
At a later hearing, he refused to recuse himself from further involvement in the claims on grounds of apparent bias. The defendant appealed.
Saini J stressed that proactive case management was expected of judges. “One must guard against too readily characterising a judge’s conduct of case management hearings as indicating apparent bias.
“Being robust is not to be equated with apparent bias, and merely deciding certain procedural matters against a party cannot properly (in and of itself) suggest an appearance of bias or actual bias.”
But in this case, he continued, HHJ Gore went too far, expressing his “ire” and “outrage” at the overall delay and in particular what he perceived as defendant’s delay in obtaining and disclosing documentation from the criminal proceedings.
Saini J said this outrage was “misplaced”. It was the claimants who had waited three years to issue and then sought the stays, which were lifted three days before the hearing. Further, the stage for disclosure of documents had not been reached.
“The disparity between the judge’s outrage directed at the appellant and apparent sympathy towards the claimants is striking,” Saini J said.
“In my view, the judge commented unjustifiably and used intemperate language in relation to the appellant’s conduct to date; and he made what seem to me to be inappropriate comments which I can only describe as ‘threats’ about his approach to future costs and case management, thereby giving rise to the appearance of bias.”
He highlighted comments HHJ Gore made to the defendant’s counsel, such as accusing her of “bimbling around asking for a stay” and describing the defendant’s conduct as “outrageous”, when the relevant actions were actually those of the claimants.
“In short, there was nothing to be ‘outraged’ about, particularly in circumstances where the claimant in that action wanted the proceedings stayed pending the criminal process and sought no particularisation of the defence; nor had the claimant made any other complaint regarding the defence.”
The attendance order seemed to have been motivated by a desire to get the “organ grinder” – the senior case handler – before the court to explain some perceived failures on the part of the defendant, Saini J noted.
“Putting aside this unfortunate use of language (which impliedly but clearly refers to counsel – Miss Clifton – as the organ grinder’s ‘monkey’), there were no relevant failures.”
It was also “hard to avoid the conclusion” that the indemnity costs order was the judge “meting out ‘punishment’ (using the language of counsel for the appellant) to the appellant for perceived misconduct”.
This was particularly “remarkable” given that none of the claimants had at any stage sought a costs order.
“The judge gave Miss Clifton no opportunity at all to make any submission about costs before (or after) announcing that decision,” he added.
Further, telling the defendant in terms that prima facie it deserved no latitude whatsoever in future case management decisions was “partisan treatment”.
“The same stricture is not levelled at the claimants, who one might observe were perhaps more to blame for the five-year delay.”
Altogether, Saini J said, this meant that the test for apparent bias – whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased – was met.
He added: “Counsel for the appellant put it aptly in his submissions when he described the appellants as having had their ‘card marked’ by the judge.”
C. George BURRY GILLIES 
There is a good reason why Allan Gore is known as Mad Dog Gore