Did not attend v Respondent — 2017

Mr Sykes applied for Employment Judge Pearl to recuse herself from hearing the costs applications in case numbers 2222529/2009 and 2202228/2010. He relied on comments in the liability judgment and on a telephone case management discussion on 14 October 2016, and said there was a real risk of apparent bias. The hearing of the recusal application took place on 1 February 2017 before Employment Judge Pearl sitting alone, with Mr Bryan for the Respondent and Mr Sykes in person.

The tribunal rejected the complaint based on the liability judgment. It held that the remarks in section 9 of the liability reasons were confined to criticisms and allegations that bore on the factual investigation, and did not express concluded views on costs or invite a wasted costs application. The judge also rejected the suggestion that his references to criminal procedure or past criminal work created bias, explaining that he had worked largely in criminal defence between 1978 and 1989, had no professional relationship with the CPS, and had only referred to some familiarity with criminal procedure when dealing with the evidence.

The tribunal also rejected the challenge to the 14 October 2016 telephone discussion. It found that Mr Sykes's account was inaccurate in material respects, including the suggestion that the tribunal had indicated a wasted costs order of £20,000. The judge held that his comment that he would remember certain moments from the trial 'to my grave' was a reference to unusual incidents in the hearing, and that the discussion about £20,000 was an illustration of the difference between a quantified application and one for the whole of the costs, not a prediction of an award.

Applying the fair-minded and informed observer test from Porter v Magill, and the related authorities cited, the tribunal concluded that the grounds for apparent bias were not met. It held that there was no basis to recuse the tribunal, and the recusal application therefore failed.