Procedure for applying to recuse on basis of bias

In El-Farargy v El Farargy and ors [2007] EWCA Civ 1149 the Court of Appeal (applying the well-established "fair minded observer" test) allowed an appeal against a judge's refusal to recuse himself on the grounds of bias. The basis of the application was a series of inappropriate comments and "jokes" made by the judge during the course of a pre-trial review

Apart from the unusual facts of the case (which the Court of Appeal described as "singularly unsatisfactory, unfortunate and embarrassing"), the main interest of the judgment lies in the procedural guidance contained in paragraph 32 of Ward LJ's judgment. He noted that the procedure for applying for a recusal is "concerning" because it involves an application to the judge in question, and it is "invidious for a judge to sit in judgment on his own conduct". Ward LJ suggested that the following procedure should be adopted:

These guidelines, if generally adopted, should mean that fewer applications to recuse are heard by the judge against whom the allegation of bias is made.