Snelling v Bolton

• Jurisdiction: Bermuda
• Judgment Date: 02 July 2004
• Date: 02 July 2004
• Docket Number: Civil Appeal 2004 No. 5
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Zacca, P; Ward, JA; Collett, JA

Civil Appeal 2004 No. 5

BETWEEN:

Nicholas Snelling

Appellant

and

Julia Bolton (formerly Snelling)

Respondent

Mr. A Martin for the Appellant

The following cases were referred to in the judgment:

Porter v MagillUNK [2002] 1 All ER 465

Lawal v Northern SpiritUNK [2003] UKHL 35

Locabail (UK) Ltd v Bayfield Properties LtdELR [2000] QB 451

R v Essex JusticesELR [1927] 2 KB 475

R v Lake

Martin v Gray (1990) 77 DLR (4th) 249

Aussie Airlines Pty v Australian Airlines Pty Ltd [1996] 813 FCA 1

Recusal of judge — Reasonable perception of bias

JUDGMENT

This is an appeal against the decision of Acting Justice Philip Storr of the Supreme Court, not to recuse himself, upon the application of the Appellant, in respect of matrimonial proceedings which he had been assigned to hear. These proceedings were long running and concerned the custody, care and control of two young children of the parties' former marriage, together with the related issues of residence and access.

The application to the learned Judge to recuse himself arose in this way. The Appellant was represented in the proceedings by Mello Jones & Martin, Attorneys, and specifically by Ms Kim Wilson of that firm in relation to the numerous interim applications made to the Supreme Court by the parties. In early January this year, however, the Appellant, without first informing his counsel of record, sought and obtained a ‘second opinion’ from an attorney employed by the firm of Cox Hallett Wilkinson, namely, Ms Rachel Cabot, in relation to the law and merits of his application to the Court. That firm has also employed Mr Philip Storr as a consultant when he is not sitting as a Judge and Mr Storr was subsequently assigned to hear the matrimonial proceedings concerned.

The application to the learned Judge to recuse himself was put forward on two separate grounds; the first being that the Judge had, by reason of certain reported remarks in Chambers concerning the progress of this litigation, prejudged the issues before the Court and, secondly, that the firm by whom he was employed had a direct professional connection with the case, leading to a reasonable perception of bias on his part.

The first ground can easily be disposed of. We have two independent sources to show what transpired before the learned Judge—the official note taken by him and a separate note taken by a law student from the firm of the Appellant's solicitors. It is agreed by counsel on either side that there is little significant difference between them. We have examined both and have concluded that nothing said by the Judge could lead an independent observer to the view that he had prejudged the issues in the proceedings. As he states in the penultimate paragraph of his Judgment, he was concerned about the effect of further delay in resolving these issues and intended to ensure as far as possible that the interests of the children were considered paramount. We agree, and, at the hearing...