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Judge rejects calls for recusal in planning case amid accusations of bias

A High Court judge has refused to recuse himself from a planning case involving Surrey Heath Borough Council after claimants accused him of bias.

In Surrey Heath Borough Council v Robb & Ors [2020] EWHC 1952 (QB) Mr Justice Freedman was dealing with a case between the council and five members of the Robb family plus persons unknown.

The Robbs argued that because Freeman J had decided in favour of the council at a series of earlier injunction hearings he should recuse himself as “a reasonable, fair-minded and objective observer would see the real possibility of unconscious bias” and think it unlikely that he would maintain the necessary detachment to reconsider issues of law and fact without being affected by his previous judgments.

Surrey Heath brought the case under section 187B (1) of the Town and Country Planning Act 1990 to prevent development work on land owned by the Robbs and to prevent their occupation of it as a caravan site.

"In effect, the latter part of what is sought is an order removing the defendants from site,” the judge said.

Freeman J declined to recuse himself from the case. He said: “A fair-minded and informed observer would recognise the distinctions between trial following disclosure and involving oral evidence with cross-examination on the one hand and interim injunctions on the other hand.”

He said parts of an earlier judgment “would indicate that no pre-judgment has been made and that it is only at the trial is when the full evaluation would be made.

“In no sense is there any question of the judgments given at the interim stage influencing the judgment, whether the judge hearing the trial was the same judge or some other judge. In short, when it comes to trial, there is no question of pre-judgment.”

Mark Smulian

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