BOI v BOJ [2018] SGCA 61

Outcome: Appeal dismissed.

Facts

1            Parties were in the midst of divorce proceedings. The Wife filed an application for the High Court judge to recuse herself from hearing the final ancillary matters on ground of apparent bias. Her application was dismissed and Wife appealed.

Court’s Decision:

2            Counsel are not the mere “mouthpieces” of their clients. They are not mere automatons, executing every instruction of the client, especially where the client wants each and every point to be taken in order to inflict maximum “damage” on the other party, and where the taking of such points is – in a word – pointless and would not only engender a wastage of the other party’s, but also the court’s, time and resources. There is a reason why lawyers are also known as “counsel” – in such situations, lawyers must counsel their clients and apprise them of what is permissible and what is not.: at [3].

3            The lawyer, whilst owing a duty to his or her client, obviously cannot be the mere conduit pipe of that client. He also owes a duty – and indeed a paramount one – to the court. A lawyer has to tread a fine line when adhering to these occasionally inconsistent duties in practice, but that is the very essence of being a legal professional.: at [4].

4            The lawyer also needs to guard against his or her own bias, which may be subconscious and insidious. In particular, the lawyer must guard against taking on, especially subconsciously, the persona of his or her client. This is all the more so in cases where the parties’ emotions run high.: at [5].

5            The applicable test for apparent bias in Singapore is whether there are circumstances that would give rise to a reasonable suspicion or apprehension of bias in the fair-minded and informed observer.: at [103].

6            To establish prejudgment amounting to apparent bias, it must be established that the fair-minded, informed and reasonable observer would, after considering the facts and circumstances available before him, suspect or apprehend that the decision-maker had reached a final and conclusive decision before being made aware of all relevant evidence and arguments which the parties wish to put before him or her, such that he or she approaches the matter at hand with a closed mind.: at [109].

7            The fair-minded observer would have concluded that the Judge was not affected by apparent bias, but was determined to expedite the proceedings instead. The observer may be taken to know generally that the court would adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted, even if the observer is not to be taken to know of the minutiae of court procedure such as the judge-led approach provided for under r 22 of the Family Justice Rules.: at [126].

8            The Judge’s annoyance with the snail’s pace at which the proceedings were going was expressed towards both parties and their respective counsel. Even if the Judge expressed her annoyance and frustration and was not a model of patience with the parties, that would not amount to apparent bias.: at [128] to [129].

The full text of the decision can be found here.

This summary is provided to assist the public to have a better understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.