Duhaime's Law Dictionary


Recusation Definition:

An application made to a judge that he/she not hear a particular case because of a real or perceived conflict of interest; that the judge recuse himself (abstain) from the case.

Recusation can occur by the judge's own initiative or the removal can occur if the judge agrees with such an application made by a litigant or their lawyer. If either happens, the judge is said to recuse himself.

An application for recusation is specific to the judge to whom it is directed and to the case that is before him/her.

Arbitrators and mediators are also subject to an application for recusation as ought to be all persons who sit on tribunals or make judicial or public agency decisions.

In his American law dictionary, John Bouvier defined it as:

"A plea ... which ... requires that the judge having jurisdiction of the cause should abstain from deciding, upon the ground of interest, or for a legal objection to his prejudice."

The remedy derives from civil law but many of the principles are similar if not identical to what the common law knows as nemo judex in parte sua.

Recusal is provided for in France's Code of Civil Procedure, at §341 and 342:

"The recusal of a judge may be requested:

  • Where he himself or his spouse has a personal interest in the dispute;
  • Where he himself or his spouse is the creditor, debtor, presumed heir or donee of one of the parties;
  • Where he himself or his spouse is related by blood or marriage with one of the parties or his or her spouse up to the fourth degree of kinship inclusive;
  • Where there have been or have proceedings between himself or his spouse and with one of the parties or his or her spouse;
  • Where he has, previously, had knowledge of the matter in the capacity of a judge or arbitrator or where the has counseled one of the parties;
  • Where the judge or his spouse is entrusted of the administration of the property of one of the parties;
  • Where there exists a link of subordination between the judge or his spouse and one of the parties or his or her spouse;
  • Where there has been a notorious friendship or enmity between the judge and one of the parties....

"The party who wishes to recuse a judge shall have, on pain of inadmissibility, to do so as soon as he has knowledge of a ground of recusal.

"In no case may the request for recusal be made after the end of the oral arguments."

The Quebec Code of Civil Procedure, at §234-235, is similar.

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