Matthews: Concerns failed recusal test
A judge has rejected a recusal application on the grounds of apparent bias made after two barristers withdrew at the last minute from a hearing and complained about his conduct of the case.
His Honour Judge Paul Matthews, sitting as a High Court judge in Bristol, rejected an earlier recusal application made by the claimants this time last year, based on him being in the same class at school as the director of a defendant company.
We reported earlier this month that Mr Justice Marcus Smith strongly criticised barristers Stephen Davies QC and Daisy Brown for failing to specify their concerns about HHJ Matthews when pulling out of the case on the eve of an important hearing.
The case was returned to HHJ Matthews and in his ruling on Monday he noted that no explanation was given for the withdrawal, except “certain comments” in a letter from the claimants’ solicitors, Ashfords.
This made “generalised allegations concerning my conduct of the trial and the contents of my judgment” and he said Mr Davies QC predicted that the Brakes, the claimants in one of several related proceedings, were “unlikely to receive a fair trial if presided over by me”.
The judge said the two main grounds for the latest application for him to recuse himself were his “adverse view” about the credibility of Mrs Brake in an earlier trial and “adverse views of the Brakes expressed in the trial just concluded”.
The judge admitted he had expressed “views unfavourable to Mrs Brake’s credibility” in the trials.
In the first judgment, HHJ Matthews said he stated that, while he did not conclude that she had told me a “deliberate untruth”, he felt he could only rely on her evidence if corroborated by an independent source.
“In the second judgment, I considered that in certain respects she had not told me the truth, and I concluded that ‘as a whole I distrusted her evidence, except where it was corroborated from an independent source’.”
However, HHJ Matthews said he pointed out to the new counsel for the claimants, Heather Rogers QC, “something she could not have known”, that the internet connection used by Mrs Brake in the first trial was “poor, and unstable, and broke down completely at some points”.
On the other hand, the internet connection used in the second trial at her law firm’s office was “far superior in quality, and stable throughout”.
The judge said he had not, when assessing Mrs Brake’s evidence in the second trial, applied any impression gained from the first.
“As the courts have said, it is necessarily a fact-sensitive exercise to decide on a recusal application.
“In this case, I do not consider that I have done any more than reach a conclusion on the evidence before me in each case as to the credibility of Mrs Brake for the purposes of the trial then being heard.
“In my judgment the fair-minded and informed observer would not consider that there was any real possibility that I was biased in approaching the further proceedings between the parties.”
Delivering judgment in Axnoller Events v Brake and another [2021] EWHC 949 (Ch), HHJ Matthews said a “number of statements by me” were relied on for the second ground of the recusal application, that he had “formed views adverse to the Brakes” on various matters, none of which satisfied the test for apparent bias.
A particular complaint, HHJ Matthews said, was that he had referred to some documents in the trial bundle which were not agreed by the Brakes, but “all the relevant documents had in fact been disclosed in or exhibited to witness statements in the proceedings”.
He went on: “But, in any event, no complaint was made about the bundle or any objection taken to any particular document, either during or after the trial, until the grounds for recusal were lodged a few days ago.
“If there were any proper objection to be made, it must have been waived by now.”
On another issue, he said the Brakes had repeated the complaint made in their first recusal application that HHJ Matthews was in the same form at school in the late 1960s and early 1970s as the director of a defendant company, although there had been no contact since.
HHJ Matthews said “none of the various grounds put forward satisfied the test for apparent bias” and dismissed the recusal application.
The judge praised Ms Rogers QC for “making submissions for the Brakes in really very difficult circumstances” and for the “tenacity and flair” she had shown.
“I should also add that, having heard some submissions from Mrs Brake herself, I should thank her too for her clear, focused and well-argued submissions, and her attention to detail, which were of great assistance.
“They were, if I may respectfully say so, well above the standard of ordinary litigants in person. It is clear that, even if she is untrained in the law, she is nevertheless a natural advocate.”
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