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High Court judge recuses himself over risk of “personal embarrassment”

We are sailing: murky waters for the judge [1]

We are sailing: murky waters for the judge

A High Court judge has recused himself from a case on the grounds that he may be “personally embarrassed” by hearing it – even though neither party asked him to stand down.

Mr Justice Holman was due to hear a bid to reopen a consent order for financial provision by the husband for the wife in a divorce case, but it emerged that both he and the husband had an interest ins sailing.

Indeed, the husband thought that “in the more distant past he has competed in boats racing against boats in which I myself was also racing”, the judge recounted in Mackay v Mackay [2015] EWHC 2860 (Fam) [2], although he said that was “completely irrelevant to the situation with which I am now faced”.

The question was raised whether, through Holman J’s membership of a particular sailing club, he might know or have friendship with certain sailing friends of the husband.

“A list containing 14 names was then produced to me. It is right to say that I recognised as names every name on that list. The majority of the people named I do not personally know at all. One or two of the others on the list I know very slightly or have met at some stage in the past. None of that, frankly, impacts on me at all.

“However, there is one name on the list which for the purposes of this judgment I will call ‘AB’ (although those are not the person’s actual initials). I was told that he is somebody whom the husband knows well…

“AB is not someone whom I would describe as a close personal friend of mine. He is, however, someone whom I have known for many years. There is, undoubtedly, friendship between us, friendship also between him and my wife, and friendship between me and his wife. He and his wife are people whom I and/or my wife meet from time to time in the sailing social context, and we and AB have numerous other mutual friends in common.”

The husband’s counsel told the court that he was only drawing these facts to the judge’s attention so that he should be aware of them, and was not applying for Holman J to recuse himself.

Neither did the wife, but her counsel, Nigel Dyer QC, put the information in the light of the husband’s application for various orders for privacy around the hearing and eventual judgment.

Holman J said: “It is known at the Bar that I am a judge who favours as much openness as possible in all court proceedings. Mr Dyer, frankly, speculated that the purpose of the husband in even referring to the possibility of overlapping friendships was a device deliberately aimed at causing me to recuse myself.

“It is, indeed, of the utmost importance that judges are very astute to spot, and not be trapped by, attempts to manipulate the identity of a judge for whatever purpose. Obviously, there may be judges who are believed to make high awards or low awards, and it is only too easy for a party who is seeking a low or a high award respectively to try to manipulate the position so that that judge is unable to hear the case.

“Similarly, it would, indeed, be intolerable if parties could manipulate the position so as to obtain or avoid, according to where their interests lay, a judge who favours openness in legal proceedings as opposed to secrecy. I am very alive to that risk.

“Unquestionably, if nothing had been said today about this shared interest in sailing and the possibility that there may be some overlapping friendships, then I would have continued to deal with this case and there could not have been the slightest difficulty.”

He noted that the main authority on recusal, Locabail (UK) Limited v Bayfield Properties Limited and others [1999] EWCA Civ 3004 [3], said that a judge could recuse him or herself “if, for solid reasons, the judge feels personally embarrassed in hearing the case”.

Holman J said: “I wish to stress that I believe myself to be an independent-minded and fearless judge. I do not doubt my ability to be detached and objective in decision-making. But the context of this case, as I have outlined above, does, or may, involve making a judgment about the integrity or probity, and possibly the very honesty, of this husband…

“If there is a common friendship with AB, I do feel that it could be a source of personal embarrassment to me in my relationship with AB if I had to find that another friend of his had acted in a fraudulent, devious or untruthful way.”

Further, with a two-stage hearing likely, with some months between the hearings, “undoubtedly, during that interval, there will be occasions upon which I will be meeting AB”.

Last month, Holman J ruled that there is no basis for seeking the recusal of a specialist judge because they may socialise with barristers that appear before them [4].