“[A]s indifferently as the herring’s backbone doth lie in the midst of the fish” – Appeal Division updates recusal test

The Appeal Division has reformulated the test for judicial recusal.

The Deemster’s oath includes the following: “… I do swear that I will, without respect, or favour, or friendship, love or gain, consanguinity or affinity, envy or malice, execute the laws of the Isle justly betwixt our sovereign Lord the King and his subjects within this Isle, and betwixt party and party as indifferently as the herring’s backbone doth lie in the midst of the fish”.

The precise geolocation of the herring’s backbone arose once again for determination, in the context of a recusal challenge, in Moussavi v VR Global Partners, LP & others (2DS 2024/17 and 2DS 2025/05) (04.06.25).

In Moussavi, a distinguished Appeal Division (Cross JA, Acting Deemster Sir Nigel Teare and Acting Deemster Moran KC) considered and updated the Isle of Man’s test for recusal in civil proceedings, by reference to English appellate authority. The test, as re-formulated, was then applied, in related proceedings, by Deemster Corlett in In the Matter of Broadsheet LLC (in liquidation) (CHP 21/038) (27.08.25).

The updated recusal test

The Appeal Division stated (at §§ 19-23):

“19. The leading Manx authority in this area is still Eurotrust International Limited v Barlow Clowes International Limited 2001-03 MLR 330 where the Appeal Division, in a judgment handed down on 1 October 2002, followed the leading English authority of Porter v Magill, Weeks v Magill [2001] UKHL 67.

20. The test was considered by this court in Alder & Ors v Kelly & King 2DS 2020/02 (13 March 2020) at paragraph [6]: “… First, the court must ascertain all the relevant circumstances. Second, the court must ask itself whether those circumstances would lead the fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased”.

21. The two-stage process was recently considered in the English decision of H (A Child) (Recusal) [2023] EWCA Civ 860 where the court said at paragraph [24]: “… The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased …”

22. It is to be noted however that in that same case the Court of Appeal preferred a “more general” test, namely, whether a fair-minded and informed observer, having considered the facts, would have concluded that there was a real possibility that a party would not receive “a fair trial”; ibid. at paragraph [25].

23. The Court of Appeal emphasised that in applying this test it is necessary to consider the proceedings as a whole; ibid. at paragraph [26].”

Application on the facts

Moussavi related to a liquidated company which had provided services pursuant to an agreement with the Islamic Republic of Pakistan and its National Accountability Bureau, relating to recovery of misappropriated assets (see § 4, summarising the history). The recusal application before the Appeal Division was based on conduct of a PTA hearing; the manner in which permission to appeal to the JCPC had been refused; the manner in which the appeal had been dismissed; the court’s alleged failure to investigate allegations by Mr Moussavi; and concurrent appointments and conflicts of interest. The Appeal Division applied the re-formulated test to each ground of challenge and rejected each.

Of particular note is the following passage (at § 83), dealing with the PTA ground:

“Deemsters are undoubtedly prevented by statute from sitting in judgment on their own cases by virtue of section 2(4)(a) HCA. It is self-evident that judges of the High Court are not precluded by that section from sitting on permission to appeal decisions. If Mr Moussavi were right in his interpretation, it would mean that no application could be made to any first instance judge for permission to appeal to the Staff of Government Division, nor indeed to the judges of the Staff of Government Division, for permission to appeal to the JCPC. The Manx procedure mirrors the position in England and Wales.”

Concluding its 18-page judgment by viewing the “conduct of the proceedings as a whole”, the Appeal Division also rejected a submission based on dicta in UCP plc v Nectrus Ltd [2022] EWCA Civ 949 (§ 36) (quoting at § 93: “The court urged judges “to think carefully about whether it is appropriate for them to hear a CPR Part 52.30 application [permitting the refusal or permission to appeal to be re-opened] in any case where their own procedural decisions are under attack on the grounds of fairness”). In this case, by contrast, no allegation had substance (§ 94).

Further recusal application

Proceedings then reverted to Deemster Corlett who, in addition to an earlier stay application, dealt with an earlier application for his own recusal, in In the Matter of Broadsheet LLC (in liquidation) (CHP 21/038) (27.08.25). Grounds here included Deemster Corlett’s role in making the Rules of the High Court of Justice (Amendment) (No 2) 2024 (on 7^th November 2024) [standardising the period to seek to appeal a decision to 21 days]; allegedly improperly delegating judicial power to advocates, by asking advocates to draft an order; the dual role of counsel for another party as an Acting Deemster; a general allegation of predetermination; and Deemster Corlett’s use of the phrase that Mr Moussavi has been: “lurking in the background”. Each ground was rejected by reference to the reformulated test, and to the Appeal Division reasoning, which of course overlapped significantly with the same issues.

Note for practitioners: The Appeal Division in Moussavi has updated the well-known Eurotrust test. The new reformulated test now applies. The High Court’s earlier detailed consideration given to recusal in Clarkson & another v DoI (CHP 2011/43) (23.05.11) (§§ 34-88) (referenced at § 81 of Moussavi), however, remains useful to understanding the background to the test, and the Manx context.