Kimyani & Ors v Sandhu

This is my judgment on an application by the defendant by notice dated 16 September 2016. In response to the question in section 3 of the notice “What order are you asking the court to make and why?” she has written the following:

“I hereby make an application for Master Matthews to recuse himself from this case on the grounds of bias and unfair proceedings. There is a real danger of bias & I object to continuing to hearing case. A hearing before a biased judge is unfair & prejudicial against defendant. Recusal Order.”

The application is supported by evidence given in the box under section 10 of the Form N244 and in a witness statement from the defendant dated 3 October 2016.

The application is made in the context of a claim begun as long ago as 28 May 2010, when the claimants, who are the defendant’s three sisters, issued a claim form seeking the removal of the defendant as administratrix of their late mother’s estate, and for an account of the administration carried out by her. The defendant had obtained letters of administration to the estate on 12 May 2009. The claimants alleged that this was done in breach of an agreement between the four siblings, under which another sister was to apply. The defendant denied the allegation. In preparing this judgment, I have had the benefit of the papers supplied by the parties, and also the court electronic file, which begins in August 2015. I had not had access to the earlier paper file.

On 1 June 2011, there was a hearing of the claim before Master Bragge, then the allocated master for this claim. The claimants were represented by counsel (not Mr Roseman who appeared before me), and the defendant appeared in person. Following the hearing, the Master produced a written judgment. The claimants exhibited the whole of a draft of this judgment, dated 30 June 2011. The defendant exhibited the front cover from the approved judgment, which is dated (and I assume was handed down) on 15 December 2011, but followed that in her exhibit by two pages from the draft judgment. (I should say that I have seen no other pages of the approved judgment.) One of those two pages contains passages that the defendant relied on as showing that she had been successful before Master Bragge. At para [9] of the draft judgment, Master Bragge accepts “that she ‘won’ the case against the London Borough of Hounslow in the Guildford County Court and was awarded costs” and also records that the defendant “tells me that she has also ‘won’ a further appeal with the Department of Work and pensions and therefore has saved the estate a considerable amount of money,” in each case without retaining solicitors. Master Bragge said:

“I am satisfied that her work has resulted in substantial financial benefits to the estate, as set out by her.”

However, the Master also went on to say in his judgment that he was concerned by an apparent failure to keep the other beneficiaries informed of the administration. The defendant’s explanation for one such failure was described as “not entirely satisfactory”. There was a problem in providing a replacement distribution cheque to the first claimant. There was delay in the defendant’s paying some funeral expenses incurred by the first claimant. He did not accept the defendant’s allegations that she had been impeded in the administration by her sisters. He was satisfied that the claimants had no confidence in the defendant’s remaining as personal representative, and that the poor relationship between them “has adversely affected the administration of the estate”

The Master concluded (at [22])

“that, despite [the defendant’s] detailed work, the interests of the beneficiaries as a whole, and [the first claimant] in particular would on balance be best served by a professional administrator, but I shall not make that order if [the defendant] agrees to provide to the claimants’ solicitors a further account (to which is annexed appropriate copy supporting documentation) and remits forthwith to [the first claimant] a cheque payable to her in respect of the interim account (and any other outstanding expenses) and immediately informs the claimants’ solicitors of details relating to the marketing and sale of Brookwood Road. Generally she will need to respond positively and promptly to any requests for information reasonably and proportionately made by [the claimants’ solicitors]. If this does not take place then I will make an order for the appointment of an independent administrator, notwithstanding that the estate is close to being finally administered.”

Master Bragge’s order following the hand-down of his judgment is dated 23 December 2011. It provides that the defendant must provide the further interim accounts by 6 January 2012, and (significantly) that the claimants be paid their costs of the application out of the estate, but if there is default by the defendant in complying with the order then by the defendant out of her share of the estate. The defendant did not provide the further accounts in time, and Master Bragge made a further order on 28 February 2012, extending time for compliance to 27 March 2012. He also disallowed certain items in the defendant’s account, saving one item in respect of which it was recorded that the court had as yet made no determination. This was an entry for 23 May 2009 “Mortgage contribution by Sandhu family”. He further ordered the defendant to pay the costs of that hearing, to be subject to detailed assessment if not agreed, out of her share of the estate.

The parties having failed to reach agreement over the quantum of costs, the claimants began detailed assessment proceedings. On 1 February 2013 the Senior Courts Costs Office ordered that the defendant pay the claimants £16500 on account of costs, and also £1220 for the costs of the application dated 4 January 2013. On 3 July 2013 Master Bragge made a final third party debt order addressed to the defendant’s bank, and ordered the defendant to pay the claimants’ costs personally. Further final third party debt orders were made on 18 November 2013 and 3 March 2014 by Deputy Master Jeffries and Deputy Master Bartlett respectively. In each case the deputy master recorded that the defendant’s conduct had been unreasonable. Master Bragge retired in 2014, and I was appointed as a full-time master in July 2015.

On 29 June 2015 the claimants made an application for an interim charging order against the defendant’s house, based on what they said were outstanding costs. On 16 July 2015 I made that order on the papers put before me in respect of the sum of £15,995.69 said in the application to be outstanding, with a return day of 2 September 2015 (as it happened, a day when I would be away on annual leave). On 29 July 2015 the claimants applied by notice for an order that the estate be distributed on the basis of the draft accounts, or alternatively for an order removing the defendant as personal representative. On 19 August 2015 the defendant applied by notice for an order setting aside the interim charging order. This was due to be heard on 26 August 2015 by Chief Master Marsh (as I would be on annual leave then). A solicitor instructed by the defendant (though not, I think, on the record) wrote to the Chief Master to say that the parties had agreed that both hearings (26 August and 2 September) should be adjourned and relisted. On this basis, on 25 August 2015 Chief Master Marsh ordered that the two applications of 29 July and 19 August be listed before me on 30 September 2015.

That hearing was the first I had held in the matter since becoming a full-time master. It lasted more than three hours. The claimants were represented by counsel (not Mr Roseman) and the defendant appeared in person. I heard counsel for less than half an hour. The rest of the time was taken up with the defendant’s oral submissions. I gave directions for the resolution of the application to set aside the charging order and also of various issues on the draft accounts. I reserved both applications to myself, on the basis that, having already had the benefit of lengthy submissions, I would be more familiar with the case than any deputy would. The defendant made no objection that I am aware of. My directions were set out in the order dated 5 October 2015 and sealed on 8 October 2015.

In accordance with the order of 5 October 2015, the claimants’ charging order application of 29 June 2015 was listed for hearing on 17 December 2015. A few days before this hearing the defendant indicated that she would be unable to attend owing to ill-health. With the agreement of the claimants, on 14 December 2015 the hearing fixed for 17 December was adjourned to 10 March 2016 with a time estimate of 1 day. It was intended that all the outstanding applications should be disposed of on that day.

In the context of the dispute over the estate accounts, the defendant had filed and served a witness statement dated 25 September 2015. The claimants sent to the defendant a request under CPR Part 18 by post on 28 January 2016, in relation both to this statement and various aspects of the draft estate accounts. The request asked some 23 questions over six pages, and sought production of certain documents. The defendant did not respond to the request.

On 17 February 2016 the claimants issued and served an application notice (dated 16 February) for an order that the defendant respond to the requests. In the notice the claimants asked that hearing of the charging order applications be postponed until after the present one. I asked the claimants about the defendant’s position and they said that they did not know. On 29 February 2016, I directed that, subject to any application by the defendant to vary, this application was to be dealt with at the hearing before me on 10 March 2016, and that the other applications should be relisted at a later date. My direction was sent by the court to the defendant’s solicitor, who in turn sent it to her. The defendant complained that the claimants had not contacted her, but so far as I know made no application to vary the direction.

At the hearing on 10 March 2016 the claimants were represented by Mr Roseman of counsel, and the defendant appeared in person but accompanied by her adult son, Kamal Sandhu, whom I allowed to make submissions on her behalf. The defendant denied having received the Part 18 request, but after considering all the submissions made I held that it had indeed been sent to her. I made an order requiring the defendant to provide the further information and documentation requested by dates in March and April, taking into account when the defendant had indicated she would be in a position to provide them. In relation to the further information to be provided, the order was in “unless” form. As I explained to the defendant, this meant that, if any of the information was not provided in time, the defendant would be debarred from including in the estate accounts the liability to which the information related. This included the “mortgage contribution” point referred to in para 6 above. The defendant did not seek to appeal this order.

A further hearing in the application of 16 February 2016 (Part 18 Request) was listed before me on 17 May 2016, after the dates for compliance with the order of 10 March 2016 had expired. Once again the claimants were represented by Mr Roseman, while the defendant appeared in person (this time without her son). I went through the various requests with the defendant, so that she could explain to me what she had and had not done, and why. However, the time available was not sufficient to enable us to conclude, and the hearing was adjourned again, to 12 July 2016.

On that occasion (12 July 2016) the representation was as before. By the end of that further hearing I was satisfied that the defendant had failed to provide further information under several of the paragraphs in the request of 28 January 2016, the subject of the unless order of 10 March 2016, and that accordingly the unless order had taken effect. This meant that, absent an appeal or other relief from sanctions, the defendant could not include in the estate accounts certain items claimed by her as liabilities of the estate.

However, in relation to certain entries relating to Thames Water and HSBC Bank I made a further ‘unless’ order directing the defendant to write letters to those entities and disclose their responses to the claimants, in default of which the defendant would be debarred from including entries relating to them in the accounts. I also ordered the defendant to pay the claimants’ costs of their application on the indemnity basis, summarily assessed in the sum of £17,275.94, and directed the transfer of the case to the County Court at Central London for an account to be taken once the latest disclosure order had been complied with.

The defendant did not seek permission to appeal the order of 12 July 2016 from me, either at the time or subsequently. Indeed, on 29 July 2016 she made a witness statement in response to the order for further disclosure in relation to Thames Water and HSBC. But on the same day she also lodged an appellant’s notice, asking for permission from the judge to appeal the whole order. So far as I can tell, there is no allegation of bias in the grounds of appeal. On 8 August 2016 she also sought the production of a transcript at the public expense. This request was to be referred to a judge after the vacation. On 11 October 2016 Mrs Justice Asplin extended time for the defendant to lodge a bundle including a transcript, but did not deal with the request for the transcript to be provided at the public expense. That request was eventually passed back to me for consideration, but I did not receive it until after 22 November 2016. On the same day as I received it I gave permission for the provision of a transcript of my judgment at the public expense, but not of the whole proceedings. The defendant was notified of my decision by letter dated 5 December 2016. She made an application for a further extension of time in which to lodge the bundle on 13 December 2016. I understand from the file that on 12 January 2017 Asplin J extended time for lodging the bundle to 31 January 2017. However, to date, I have not received any uncorrected transcript from the transcribers to approve.

In the meantime, the two outstanding applications concerning the interim charging order (one for further consideration, one for setting aside) had not been relisted. I had simply overlooked them, for which I am sorry. On 29 July 2016 two further application notices on behalf of the defendant were sealed (both in fact dated 28 July). One asked for an order that the claim be transferred to the County Court at Staines “local to where all the parties are based, to a specialist circuit judge of the Family Division.” This application was listed by court staff to be heard by me on 25 August 2016 with a time estimate of 15 minutes.

The other application was a second application to set aside the charging order of 29 June 2015. It asked for the same relief as the application notice of 19 August 2015. This application was initially listed by inexperienced court staff for Friday 5 August 2016 at 2.45 pm. This was done without reference to me. If it had been referred to me I would not have directed it be listed then, as masters usually do not sit on Friday afternoons, which are instead used for box-work. I first became aware of the listing on 2 August when the claimants’ solicitors emailed to ask if it could be moved, because both their counsel and their solicitor would be on annual leave then. They asked for a relisting after 25 August. Since the hearing should never have been listed then, on 2 August I directed that it be vacated and relisted for hearing at a later date.

The defendant sought to refix the hearing of her application to set aside the charging order as soon as possible. The court staff (again without reference to me) put the matter in the masters’ urgent applications list for 17 August 2016, before Master Clark, with a time estimate of 30 minutes. However, in my view there was no sufficient urgency shown that justified putting the application in the urgent applications list. Moreover, it could not be dealt with (especially by a judge unfamiliar with the detail of the case) in 30 minutes. The result would be that it could not be concluded on that day in any event, and would inevitably have to be adjourned over to another date.

 As to the hearing of the application to transfer the matter to Staines, first listed before me for 15 minutes on 25 August, the defendant urged that I had decided that the matter should be transferred out. It is correct that I had ordered that the matter be transferred out, but to the County Court at Central London (Chancery List), and only once certain events had taken place. Mrs Sandhu was in effect seeking a significant variation of my earlier (recent) order. The application was opposed by the claimants, and there was therefore simply no prospect that it could be dealt with in 15 minutes. That too would end up being adjourned over.

My view was that these applications could be dealt with together in a two-hour appointment. Because I was away on annual leave from the end of August to the middle of September, the earliest I could accommodate a hearing of 2 hours was the first week of October. There would be no significant time advantage gained in splitting this into two one hour slots. So on 11 August 2016, after considering the written submissions of the parties, I directed that the hearing of both Mrs Sandhu’s applications of 28 July take place at 2.30 pm on Wednesday 5 October 2016, with a maximum of 2 hours allowed.

 On 23 August 2016 the claimants made an application for a further charging order on the defendant’s house in the sum of £17355.32, arising from the order of 12 July 2016. On 5 September 2016 (when I was on annual leave) Deputy Master Hansen made an interim charging order on the papers, with a return date for further consideration of 26 October 2016. On 14 September 2016 the claimants asked if the return date could be brought forward to the hearing fixed for 5 October. On 21 September (when I had returned from annual leave and had seen this request) court staff at my behest asked if all the required documents had been served on the defendant on or before 14 September 2016 (ie 21 days before 5 October). Although the claimants had sent the order and a covering letter to the defendant before that date, they had not sent her the application notice and supporting documents by then. So I declined their request to move the hearing back to 5 October from 26 October. As it happens, I was away on a judicial exchange from 17 to 28 October inclusive, and Deputy Master Rhys, who substituted for me on various days during those two weeks, vacated the hearing due on 26 October. Unfortunately, I do not know why or in what circumstances.

On 26 August 2016, the defendant sent me an email attaching a letter dated 23 August, in which she asked that I allow the Chief Master to reassign this case to another master. The letter said this:

“After very careful consideration and with respect for your profession, I write this letter and hope that you will also respect my position as an Administrator of my mother’s Estate, having completed all duties on 12^th March 2012, as per Master Bragge’s orders and then having been faced with disgruntled and hostile beneficiaries, many facts unknown to you like adding value over £95,000.00 to the Estate for all beneficiaries . Forfeiture removed. DWP appeal won. All three hostile beneficiaries issued with Police Harassment notices.

I raise my concern with regards to cancelled hearings which were important to me.

Would you please allow the Chief Master to re-assign this case to another Master as I have listed the reasons separately for my decision.(list A-P)

Your interim judgment of 12^th July 2016 has already been appealed against.

It would be in our mutual interest for you to step aside and allow me to expedite matters and close this case and deal with things as quickly and promptly as possible with a fair and partial Master.

Courts main aim in dealing with the cases is to have the parties on equal footings, saving expense, dealing with cases efficiently, promptly. Not in this case.

I am grateful for Masters assistance.”

It was accompanied by a statement headed “Facts of the case,” covering some two sides of A4. I will return to this document. The same day (the last day before I went on annual leave) I passed the letter to the Chief Master for his consideration. On 31 August 2016 (when I was away), his clerk replied to the defendant:

“I am writing on behalf of the Chief Master, in response to your letter dated 23rd August 2016.

He has carefully considered your request that another Master should be nominated to your case in place of Master Matthews. He has decided that there is no good reason to transfer the case to another Master.

In considering your letter, the Chief Master has taken account of, amongst other considerations, the document annexed to your letter and your suggestions that Master Matthews should not be dealing with your case in view of his professional connections. The Chief Master does not consider that there is any reason why Master Matthews should recuse himself.

Master Matthews will remain the Master who deals with the claim.”

The Defendant replied by email to the Chief Master’s clerk on 19 September, saying that she would be

“filing a formal request or application for recusal of Master Matthews from my case with Evidence supporting my application and that no further hearings be allowed until my application is considered”.

She referred to her medical condition and asked for advice on procedure. The Chief Master’s clerk responded the same day that the application should be made on Form N244, supported by evidence, and these should be served on the other side. He added that the application should be listed before me.

I return briefly to the two-page document setting out further allegations, attached to the defendant’s email to me of 23 August 2016. Most of the allegations are about the merits of the case, and are not relevant to my role in the litigation. Thus they can have no bearing on the question whether bias or the appearance of bias on my part is demonstrated. But a small number may be thought perhaps relevant. In summary these are as follows:

I deal with in these points in the same order:

I should also record that on 19 September 2016, in the context of the request made by the claimants to move the hearing of the further consideration of the second charging order back from 26 October to 5 October 2016, the defendant wrote to the court as follows:

“Thank you for your communication.

I object to a bias and impartial judge hearing my case.

I do not wish to be stressed out by claimants and Master Matthews by continually cancelling all Interim Hearings in front of fair and just Judges.

Hearing cancelled 26th August 2015 in front of Master Marsh

Hearing Cancelled 17th August 2016 in front of Master Clark

Again, threatening to cancel hearing in front of other Master.

I have already appealed against Master Matthews previous order and Appeal Court will be considering his on their return in October 2016 as conveyed to me. 

By continually cancelling hearings from other judges, Master Matthews and Claimants have proved with the evidence of bias and also raised impression of bias repeatedly.

I OBJECT TO MASTER MATTHEWS HEARING MY MOTHER'S CASE AND HEREBY FORMALLY REQUEST THAT HE RECUSES HIMSELF FROM THIS CASE. 

With kind regards

Mrs Sandhu”

On 5 October 2016, at the adjourned hearing to deal with the applications concerning the first charging order, the defendant was accompanied by a McKenzie friend, Robert Smith, but addressed me herself. The claimants were represented by Mr Roseman. The defendant informed me that she had issued a further application, this time for me to recuse myself from this case on the grounds of bias. She showed me an unsealed copy of the application notice, explaining that another had been left downstairs. Following submissions from both the defendant (who nevertheless urged me to go on and decide at least her application to transfer the matter to Staines, saying that she had “every faith” in my ability to deal with the application) and from the claimants through their counsel Mr Roseman (who argued that I should not go on, but should instead adjourn), I gave a short extempore judgment in which I decided to adjourn the hearing of the applications pending the resolution of the defendant’s application for me to recuse myself.

As it turned out, although the recusal application notice was dated 16 September 2016, it was not sealed upon issue until 6 October 2016, ie the day after the hearing at which it was announced. In my order of 5 October I gave directions for the service of evidence relating to that application, leading to a hearing which I fixed for 6 December 2016 at 11.30 am. As it happened, for unrelated reasons, on 11 November I was obliged to move the hearing back one week, to 2.30 pm on 13 December 2016. That was the date on which the hearing took place.

The rubric to section 10 of the application notice indicated that the defendant would rely on evidence in a witness statement. I deal with that below. It also said that the defendant relied on the evidence in the box underneath. This reads as follows:

“GP HAS SIGNED OFF SINCE MAY 2016.

1 It is only since Master Matthews has been involved in this case for only a year that he has managed to cause maximum damage to Mrs Sandhu’s health. First put on Antidepressants in March 2016, then on Health Assessment and finally on one to two weekly meetings by the GP to safeguard patient’s mental health. Defendant has been forced to endure case hearings whilst on Medication, Mental Health treatment, loss of job and without any recourse to legal advice or financial assistance. ATTACHED EXHIBIT MD1 - MEDICATION

2 Master Bragge was never oppressive & never gave rise to bias & unfair treatment. Master Matthews has shown complete Animosity towards defendant in his hearings and in his manner towards me

3 Master Matthews was informally asked to pass this case to another judge but he has Refused to do so and that the decision should be put on record

4 I do not [illegible] and object to being harassed and victimised & forced into hearing by Master Matthews and that the Judgment by this Judge detrimental and most prejudicial to defendant.

5 A reasonable man having knowledge of all relevant circumstances might well apprehend that the defendant will not receive fair & impartial hearing & Master Matthews has already caused mental abuse on defendant forced medication & Mental Health issues.”

Although this makes allegations of animosity, harassment and victimisation against me, it does not give sufficient particulars to enable me to respond in detail. I can only say that I am not aware of having done any of these things. More specific allegations are to be found in other documents, to which I now turn.

As already mentioned, the recusal application was supported by a witness statement of the defendant, dated 3 October 2016. In this statement the defendant accuses me of being biased and unfair. She makes a number of factual points, the most important of which I may summarise as follows:

I deal with each of these complaints using the same numbering:

In her skeleton argument prepared for the recusal hearing the defendant argued that, in making the interim charging order of 16 July 2015 in the sum of £15,995.69, I

“ignored each and every details, letter, email, verbal explanation in hearing, details of full payments, being three payments evidenced with payment details, bank account numbers and confirmed with posting proof. Yet Master Matthews continues to entertain claimants with their alleged claim without any evidence without any truth in their claim. This claim should have been DISMISSED long time ago.”

She goes on to blame the claimants’ solicitor for making a false witness statement “that the estate owes further costs of £15995.69”. It seems that this really is the nub of the present dispute. The defendant is upset that the court made an interim charging order when, on her case, the debt was not due.

However, as I have said elsewhere in this judgment, the application for the charging order was made in regular form with evidence supported by a statement of truth. Were it otherwise, I would not have made the order. I made the interim charging order in private according to the usual procedure, fixing a return day (2 September 2015) at which the defendant would be able to challenge the order if she considered it was wrongly made. Instead of waiting for that, however, she issued her application of 19 August 2015, to which she exhibited the evidence which she wished the court to have regard, and which she said demonstrated that the sum of £15,995.69 was not in fact owed. I did not have before me when I made the order of 16 July 2015 the defendant’s evidence exhibited to her subsequent application, and therefore could not have taken it into account. Since (as explained earlier) we have not yet reached the hearing of her application, I have still not yet had the opportunity to do so. Had the defendant not made the application for me to recuse myself, it would have been finally disposed of on 5 October 2016.

At the hearing the defendant also urged other complaints which she said demonstrated bias or the appearance of bias on my part. One was that the claimants were shown preferential treatment because they successfully asked for hearings on 26 August 2015 and 17 August 2016 to be adjourned because their preferred advocate was not available, although they have often used other barristers from the same chambers. The true position is however that (i) the hearing of 26 August 2015 was adjourned (by Chief Master Marsh, when I was on leave) with the consent of the defendant, expressed by her solicitor, who in fact wrote the letter to the court asking for the adjournment, and (ii) I adjourned the hearing of 17 August 2016 because it was not sufficiently urgent to justify a place in the masters’ urgent list and would in any event take longer than the 30 minutes allowed for it.

Another complaint was that the order of 5 October 2016 (sealed on 17 October) was sent only to the claimants, and the defendant did not receive it. The order was made at the hearing on that date, in which the defendant took part. So she knew from the beginning what was in the order. Mr Roseman sent his draft minute of order to me by email the next day, copying in the defendant. The defendant emailed me her comments on it on 13 October. On 14 October I emailed the parties with my conclusions on the draft and finalised it. The order once sealed (on 17 October) was in the normal way sent to the claimants to serve on the defendant. But whether the defendant did or did not in fact receive it is not a matter that depends on anything that I did or did not do.

The defendant further complains that she was not informed by the court that the further hearing of the second interim charging order on her home (made by Deputy Master Hansen on 5 September 2016), due to be held on 26 October 2016, had been cancelled. She says that she turned up at court to find that it was not going ahead, and further says that she was told by court staff that I had adjourned the hearing. In fact, as mentioned above, I was away from London 17 to 28 October 2016, and it was Deputy Master Rhys who appears to have vacated the hearing, though without giving any specific reason.

In an email which the defendant wrote to the court on 28 October 2016, she said this:

“I attach scanned letter dated 25/10/16 post mark, which was posted to me for the hearing on 26th October 2016. I received this after I returned from Court on 26th October 2016 and having been informed by court usher and court administration office that the hearing scheduled for 26th October 2016 at 2.30pm in front of Master Rhys was cancelled”

On the judicial note which the Deputy Master completed, dated 26 October, he has written “N/A” (for “no attendance”) against both the claimants’ and the defendant’s names. Whatever the significance of that, and however annoying it must have been for the defendant to go to court to find that no hearing was taking place, I was not involved in any of it.

A more general point which the defendant makes about the second charging order is that it is based on costs that she was ordered to pay in the order of 12 July 2016, in respect of which she has since sought permission to appeal. She complains that, had Deputy Master Hansen known on 5 September that the order was under appeal, he would not have made the interim charging order. I do not know whether the Deputy Master was aware of that when he made the charging order, or whether it would have made any difference to him. But irrespective of the merits of the argument, none of this involves me.

A further complaint is that I have put the defendant under stress by delaying matters unnecessarily, for a year and a half, since July 2015. She says that, had the charging order matter been dealt with when she issued the application, the case could have been closed. I accept that being involved in a court case as a litigant in person is time-consuming, requires concentration and may be stressful. But as a master managing cases I have only limited resources to dispose of. I cannot create more hours in the day. I have tried to list the various applications as quickly as I can. However, on a number of occasions the parties themselves have not been able to attend on the first dates that were offered, and hearings have been delayed to later dates. In August 2015 the defendant agreed to an adjournment at the request of the claimants, to the end of September. In December 2015 it was the claimants who agreed to an adjournment at the request of the defendant, until March 2016.

On most occasions when matters have gone-part-heard and more time has been needed, I have looked at the court diary online whilst still in court, with a view to fixing a date whilst the parties were together. I accept that I allowed the claimants’ application for an order under Part 18 to be heard before the other applications. But that was on the basis that it was more sensible to obtain the information and accounts to close the matter down before turning to enforcement questions. Moreover, it was expressly subject to any application the defendant might make to vary my direction. But no such application was ever made.

The defendant’s recusal application was opposed by the claimants, who put in a witness statement from Paul Prentice, their solicitor, dated 2 November 2016, with one exhibit. I do not think it is necessary for me to address this in any detail, though I note Mr Prentice’s statements at paragraph 15 that I have given the defendant every opportunity to set out everything that she wanted to say, and at paragraph 59 that during hearings I behaved appropriately. They accord with my own recollections. Mr Roseman addressed me briefly at the hearing on the facts and the law.

So far as relevant to this case, there are two important and related rules in the administration of justice. One is that no-one should be a judge in his or her own cause: Dimes v Grand Union Canal (1852) 3 HLC 759, 793. The other is, as Lord Hewart CJ once famously remarked,

“that justice should not only be done, but also must be manifestly and undoubtedly be seen to be done”: R v Sussex Justices, ex p McCarthy [1934] 1 KB 256, 258.

The two rules overlap. It is obvious that, if a person judges his or her own cause, justice will not be done, or at any rate will not be seen to be done. Where a judge has a pecuniary or other significant personal interest in the outcome of the case, such as the promotion of a cause, the judge is automatically disqualified: R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119, HL. It does not matter whether the judge knew or not of the interest.

But the second rule goes wider. It extends beyond cases where the judge has a personal interest to cases of bias. As the Court of Appeal once put it,

“Bias is an attitude of mind that prevents the judge from making an objective determination of the issues that he [or she] has to resolve”: Re Medicaments and Related Classes of Goods (No 2) [2001] ICR 564, [37].

The law distinguishes actual bias from apparent bias. The former is subjective, and deals with the judge’s state of mind, while the latter is objective, and deals with the judge’s conduct and the surrounding circumstances. Where a judge is actually biased in a decision, then justice has not been done. Where a decision is tainted by apparent bias, then justice is not seen to be done. Cases holding that there has been actual bias employed by a judge are rare. Most cases dealing with bias are argued and decided on the basis of apparent bias.

As to the law in relation to recusal by judges for bias, the claimants cited Howell v Lees-Millais [2007] EWCA Civ 720 (referring to Porter v Magill [2002] 2 AC 357, Lawal v Northern Spirit [2003] ICR 856, HL, and AWG Group v Morison [2006] 1 WLR 1163, CA). The general principle is not in any doubt. In Porter v Magill [2002] 2 AC 357, the House of Lords endorsed the approach taken by Lord Phillips MR in Re Medicaments and Related Classes of Goods (No 2) [2001] ICR 564, as follows:

“[85] … 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.”

It should also be noted that the mere fact that a judge has been guilty of shocking, even deplorable behaviour, is not enough: Harb v HRH Prince Abdul Aziz bin Fahd bin Abdul Aziz [2016] EWCA Civ 556, [68].

In her skeleton argument, the defendant cited only Porter v Magill. That is a case about apparent bias. But she is not a lawyer, and although in section 3 of the application notice she seeks my recusal expressly on the grounds of “real danger of bias” (see also the evidence at section 10 of the notice), it does appear that she is also making allegations against me of actual bias. I will consider this in more detail shortly.

So far as concerns the “informed and fair-minded observer”, in Harb v HRH Prince Abdul Aziz bin Fahd bin Abdul Aziz [2016] EWCA Civ 556, the Court of Appeal said:

“[69] … We would however, emphasise two important points. First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The ‘real possibility’ test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias… [T]he litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business. Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded.

[ … ]

[72] Secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances, and it is for the court to make an assessment of these… It was held in Virdi v Law Society [2010] EWCA Civ 100 that the hypothetical fair-minded observer is to be treated as if in possession of all the relevant facts and not only those that are publicly available…”

So the hypothetical informed and fair-minded observer knows all the relevant facts, whether publicly available or not, and has a perception of the case which is not that of the litigant, but is instead more objective and dispassionate. That is the standard to be applied.

But the court must apply these rules not only for the protection of the litigant against whom bias or apparent bias may operate, but also for the benefit of the other litigants involved, and indeed the wider public. This is because in our system litigants are not permitted to choose their judges. As Chadwick LJ once said:

“But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant -- whether it be a represented litigant or a litigant in person -- criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised -- whether that criticism was justified or not”: Dobbs v Tridos Bank NV [2005] EWCA 468; see also Re JRL, ex parte CJL (1986) 161 CLR 342, 352, per Mason J.

So the judge asked to recuse him or herself should only do so where the case is properly made out. Another way of putting this point is that the rule is a rule of law, and confers no discretion on the judge. If the case crosses the line, the judge must not hear the case. If it does not do so, the judge cannot decline to do so.

I deal first with the question of actual bias. There is something rather unreal about asking a judge to consider whether he or she is actually biased against a party in litigation. I record formally here that I do not consider that I am. But it is clear that the defendant so argues. In her skeleton argument, for example, she says:

“Master Matthews has blatantly clearly taken side of claimant, causing anxiety stress and harm” (top of p 5, (dd));

“Master Matthews is making sure that no other judge ever finds out about the false claim of Paul Prentice solicitor of claimants…” (p5, (hh));

“Tribunal is biased and siding with claimants therefore Master Matthews must recuse himself and allow a partial [sic] and just judge” (top of p 6).

There are allegations which appear to be of actual bias in the defendant’s witness statement which I have summarised as numbers 7 and 11 under paragraph [34] above. They are responded to under the same numbers in paragraph [35] above. Those responses are to the effect that the defendant is wrong in her allegations. Moreover, there is no support for them in the claimants’ evidence on the application. My conclusion is that they are baseless. There is in fact no credible evidence of actual bias by me.

I turn then to apparent bias. There are allegations made in the document attached to her letter of 23 August 2016, summarised in paragraph [27] above under four sub-paragraphs. I have dealt with those points in paragraph [28]. There are allegations made in her witness statement, summarised in paragraph [34] above under eighteen sub-paragraphs. I have dealt with those points in paragraph [35]. Then there are allegations made in the skeleton argument and at the hearing. These are set out and dealt with in paragraphs [36]-[44] above.

Many of the allegations made in fact relate to the conduct of others, rather than of me, and the informed and fair-minded observer could not conclude from them that there was a real possibility that I was biased. They are the allegations dealt with in sub-paragraphs (2), (4), (5), (9), (12), (18) of paragraphs [34] and [35], and in paragraphs, [39], [40] and [42]. Accordingly, I do not consider these further.

I deal with the remainder as follows, referring to the paragraphs above where the allegations appear.

Paragraph [27](1): proceeding with the hearing although a long document had just been served on the defendant: The informed and fair-minded observer would accept what I did as practical and sensible in the context of limited time and resources, rather than continually adjourn hearings, and would not see it as indicative of a real possibility of bias.

Paragraph [27](2): not allowing other masters to deal with the case even though I was not the assigned master: The informed and fair-minded observer would see that the defendant was mistaken as to my not being the assigned master and as to the practice of the chancery masters, and therefore would not see this as indicative of a real possibility of bias.

Paragraph [27](3): relationship with Ten Old Square chambers: The informed and fair-minded observer, knowing the facts, would realise (a) that the defendant was simply mistaken about the way barristers are organised and also about the relationship between that set and me, and (b) that even if there were a relationship that would not prevent Mr Roseman from appearing before me. So it would not indicate a real possibility of bias.

Paragraph [27](4): Master Bragge’s decision was in favour of the defendant, and my decisions are against her: The informed and fair-minded observer, knowing the facts, would see that the defendant was mistaken about Master Bragge’s decision, but in any event would not consider that because judge A finds for a party on one aspect of a case, therefore judge B is possibly biased just because that judge finds against the same party on some other aspect or aspects of the same case.

Paragraph [34](1): Master Bragge’s judgment in the defendant’s favour: This is in substance the same point as under paragraph [27](4), and the answer to it will be the same too.

Paragraph [34](3): claim could have been settled by mediation: The informed and fair-minded observer, knowing the facts, including the poor relationship between the parties and seeing what happened at the hearings, would not have considered that the case could have been settled by mediation, or at the least would consider that it was not unreasonable of me to take that view. There is nothing in this to suggest a real possibility of bias by me.

Paragraph [34](6): I do not know the case: The informed and fair-minded observer, knowing the facts, would be aware of my preparation for each hearing, and could not conclude that absence of knowledge meant there was a real possibility of bias on my part.

Paragraph [34](7): I have a closed mind and have stated that I have predetermined the case: The informed and fair-minded observer, knowing the facts, would be aware that I have never so stated, and that I have brought an open mind to each hearing. There is nothing in this to suggest a real possibility of bias by me.

Paragraph [34](8): defendant forced into mental health treatment: The informed and fair-minded observer, knowing the facts, would be aware that there was no medical evidence to this effect, and only the bare assertion of the litigant herself to support it. In those circumstances that observer could not conclude that there was a real possibility of bias on my part.

Paragraph [34](10): hearings in the case have been cancelled by me: The informed and fair-minded observer, knowing the facts, would be aware of the reasons for each such cancellation and would not consider that any such cancellation indicated that there was a real possibility of bias by me.

Paragraph [34](11): I knew that the debt the subject of the first interim charging order was not due: The informed and fair-minded observer, knowing the facts, including (i) the fact that I had not been involved in the earlier stages when the costs orders were made, (ii) the procedure for granting interim charging orders and then considering them on a return day with a view to making them final or discharging them, and (iii) the evidence given in the papers before me when I made the interim order, would not assume that in making an interim order I either knew or did not know whether the debt was due, but rather that I was relying on the evidence in the papers before him. Accordingly, that observer would not consider that I knew that the debt was not due, and accordingly that there was a real possibility of bias by me.

Paragraph [34](13): application to set aside interim charging order has never been heard: The informed and fair-minded observer, knowing the facts, would understand why it has not yet been heard, and would not consider that this showed a real possibility of bias on my part.

Paragraph [34](14): claimants’ without notice applications are always granted: The informed and fair-minded observer, knowing the facts, would be aware that the only such applications in this case are those for interim charging orders, which are governed by a particular procedure which allows for further consideration on a return day, and that operating this system does not suggest a real possibility of bias by me.

Paragraph [34](15): denied transfer of case to Staines: The informed and fair-minded observer, knowing the facts, would be aware of the reasons why it has not been heard yet, and would not consider that they indicated that there was a real possibility of bias by me.

Paragraph [34](16): failure to remain impartial by allowing false claims to be made: The informed and fair-minded observer, knowing the facts, would not consider that allowing a party to put forward its own case within the rules, even in support of an interim charging order, before the return day at which the allegations could be challenged, indicated that there was a real possibility of bias on my part.

Paragraph [34](17): I have ignored her skeleton arguments and oral submissions: The informed and fair-minded observer, knowing the facts, including my preparation for each hearing and my willingness to listen to the defendant during each hearing, would not agree that I had ignored them, and hence could not consider that this showed a was a real possibility of bias by me.

Paragraph [36]: I have ignored the defendant’s evidence that the debt was not due: This has in substance already been dealt with, in paragraphs [68] and [72] above. The informed and fair-minded observer, knowing the facts, including the procedures for dealing with charging orders, could not consider that my actions showed a was a real possibility of bias by me.

Paragraph [38]: preferential treatment for claimants in granting requests for adjournments: The informed and fair-minded observer, knowing the facts, including those stated in that paragraph, would not consider that they indicated that there was a real possibility of bias by me.

Paragraph [43]: delaying matters unnecessarily since July 2015: The informed and fair-minded observer, knowing the facts, including those stated in that paragraph, would not consider that they indicated that there was a real possibility of bias by me.

I conclude that there is no substance in any of the defendant’s complaints of bias or the appearance of bias by me, and the application for me to recuse myself from hearing further applications in this claim is dismissed. Once this judgment is handed down, I will make arrangements to relist the outstanding hearings.

I sent out the judgment in draft to the parties by email on 18 January 2017, intending to hand it down on 25 January. My covering email referred to various paragraphs of the Chancery Guide, including 21.108. On 20 January 2017 I received by email a letter from the Defendant covering just over 4 pages in single-spaced typing. I have read the letter. In it, she seeks to re-argue various points from the application and the case. Para 21.108 of the Guide makes clear that sending a draft judgment to the parties does not give rise to an opportunity to re-argue the case. If the Defendant is unhappy with my judgment, her remedy is to seek to appeal it.

As I said, I originally listed the handing-down for 25 January 2017. However, a day or two before the Defendant emailed me asking for this to be postponed, on the basis that she had only just received the skeleton argument from counsel for the Claimants. In all the circumstances I acceded to this application, and put off the hand-down to today. In her skeleton argument dated 30 January and received by the Court on 31 January (and seen by me on 1 February), the Defendant informed the Court that she would not be attending the hand-down. She appears to have assumed that the CPR provide that nothing else will happen except the handing-down, and that all consideration of costs or other matters will be postponed. That is not what the rules require, and it is not what my covering email said.

On Sunday 29 January 2017 the Defendant sent me further email correspondence. In an email timed at 12.11 pm she complained of a failure by the Claimants to file and serve a statement of costs at least 24 hours before the hearing, asserting that this proved the dishonesty of Mr Prentice, the Claimants’ solicitor. Mr Prentice copied me into his response timed at 2.14 pm the same day. This said that he had emailed the statement of costs to the Defendant at 9.33 am on 24 January. The Defendant’s email reply, timed at 8.30 pm the same evening, was headed “NO COMPUTER/PRINTER SINCE APRIL 2016”. It complained that the Claimants were communicating with the Defendant by email although she had told them that her own computer was broken and her “chosen mode of communication” was in writing. None of this is relevant to the substantive recusal application, and it does not affect my draft judgment.