Decision of the court
In arriving at its decision, the court reaffirmed the established principle that an applicant in a recusal application must meet the high threshold of satisfying the “
real danger of bias” test
, namely that there was a real danger that the judge might unfairly regard with favour or disfavour the case of a party to the issue under consideration by him.
Whether the plaintiff dragged the court into the arena of the dispute
The judge found that based on the court’s records, the plaintiff’s statement on the undertaking to regularise its cause papers was an accurate reflection of the facts. This could not constitute “
dragging the learned JC into the arena of the dispute” nor did it warrant a suggestion that the court was assisting the plaintiff in agreeing with the plaintiff’s statement that the undertaking was given.
Whether the judge assisted the plaintiff when referring case law at ex-parte hearing
The court held that it is common practice for a judge to raise any issue that may be troubling him to the counsel appearing before him when considering an application, whether
ex-parte or otherwise. In seeking such clarification, the judge was merely discharging his judicial function to satisfy himself that all relevant legal issues were being addressed to enable him to determine the application. Further, it was held that this practice has never been a source of complaint let alone a reason to recuse the judge.
The court concluded that the defendants had failed to provide any cogent evidence to show that there was a “
real danger of bias” on the judge’s part and dismissed the recusal applications.
Costs ordered against counsel in personal capacity
The court further found that the recusal applications were filed in such a cavalier manner and the grounds relied upon were so frivolous, flimsy, and disrespectful that not only did the applications wholly fail to meet the high threshold required, but they even bordered on contempt of court. The judge accordingly ordered that the costs be borne by the counsel personally.
Comment
The High Court’s decision has reaffirmed the high threshold to be met for recusal applications. Such applications must always be supported by cogent evidence and should only ever be made after considering the harm that an unfounded recusal application may inflict on the integrity of the judiciary.
This decision emphasises that unsubstantiated recusal applications may border on contempt of court on the part of the applicant’s counsel. It is incumbent on lawyers to ensure that any recusal application must have well-founded basis and to advise their clients accordingly.
The High Court’s decision is currently pending appeal.
Case commentary by Eric Gabriel Gomez (Associate) and Laarnia Rajandran (Associate) of the Litigation and Arbitration Practice of Skrine