A judge refused my client’s application to appeal. Can the same judge hear the substantive appeal?
A circuit judge refused my paper application to appeal a decision of a district judge. Under CPR 52.4(2) I requested leave to appeal by oral submission, which was granted by a different judge. The substantive appeal will be heard by the judge who refused the paper application: should they be recused?
You could ask the listing office whether a different judge is available.
However, there is no procedural irregularity in the original circuit judge hearing the substantive appeal.
This was made clear by the Court of Appeal in Broughal v Walsh Brothers Builders  EWCA Civ 1610.
In Broughal, the court expressed support for the proposition that the prior involvement of a judge at the permission stage involving a consideration of the papers does not disqualify the same judge from hearing the substantive appeal (or an oral renewal of the application), unless the judge has expressed views in such a way as to indicate to any fair-minded lay observer that they:
- have reached a concluded position, and
- are unlikely to be open to further argument
The court went on to say that, due to rigorous judicial training, the number of such cases is likely to be very rare.
While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.
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