Drury v British Broadcasting Corporation & Anor

At the outset of this appeal and before any of the substantive issues have been addressed, the appellant Mr Stephen Drury, acting in person, has made an application that Wilson LJ should recuse himself from hearing the appeal. The basis of his application is that, in October last year, Wilson LJ refused an application for permission to appeal in a matter in which Mr Drury was acting as a Mackenzie friend for one of the parties. He was permitted to address the court quite extensively. Mr Drury formed the view that Wilson LJ was critical of his professional conduct in respect of that matter. He said that he felt humiliated and ‘put down’ by Wilson LJ’s judgment. He has submitted to us this morning that, in those circumstances, he fears that the present appeal would not be dealt with fairly by Wilson LJ.

We have taken time to consider this application and in particular have refreshed our memories as to the guidance given by this court in Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451. From the guidance given in that case, it is clear that there mere fact that a judge has been critical of a party on a previous occasion does not found a later objection to the judge sitting on another matter involving the same party. However, all such applications have to be considered within their factual context and it is possible that trenchant criticism of a party by a particular judge might give rise to a perception of a risk bias in another case. This appeal is concerned with a ruling by Eady J on the joinder of Mr Douglas Carnegie as second defendant in Mr Drury’ libel action against the BBC. The issues do not depend upon the view the court might take of Mr Drury’s credibility. Nor do they depend upon the court’s view, if any, of the merits of the underlying litigation. That being so, it is my view that no impartial observer with knowledge of all the relevant facts, would think that any adverse view that Wilson LJ might have formed of Mr Drury in the past could cause him to be biased in respect of this appeal. I think it would be entirely appropriate for us to reject the application.

However, in Locabail the court made it plain that, if there were any room for doubt as to which the right course was to adopt, doubt should be resolved in favour of recusal. Also, if another judge can be found so that the case can proceed immediately, without increased cost or inconvenience to the parties, it seems to me that the court can properly and should arrange that substitution, so as to avoid any question of dissatisfaction or future complaint. We have ascertained that it will be possible for this matter to proceed at 2.00pm today with a substitute Lord Justice. Accordingly, we have decided that the better course is for Wilson LJ to recuse himself. That he now does, as he has indicated to me that he is willing to do, and the matter will therefore be put back until 2.00pm this afternoon, when another Lord Justice will be present.

The papers have already been sent to him. If there is any need for him to delay the start of the hearing, you will be told. I do not think that that will be necessary. I will be able to indicate to him which are the important documents for him to read and, in my view, he will be well prepared in two hours time.