The Court of Appeal’s recent decision in El Faragy v El Faragy [2007] EWCA Civ 1149 was always going to make the National Press especially where the court held that - as a matter of law - an experienced Family Division High Court judge (Singer J.) should be recused from adjudicating upon the division of assets in a big money divorce case as a result of certain remarks he had made during a number of interlocutory applications in the same proceedings.

The newspapers did not spare Singer J’s blushes and reported in lurid detail the remarks the judge had made about the Egyptian and Muslim husband. In the authors’ view contextually viewed the judge’s remarks whilst sometimes colourfully expressed were – some might feel - justified. Singer J found himself squarely confronted by an allegedly rich husband who had – not merely on Singer J’s findings, but previous judge’s findings – consistently and flagrantly defied the Court’s orders to the potential expense and detriment of his former wife. 

He (the husband) is running a campaign. It is perfectly clear to me, prima facie , I keep having to say that because, of course, I may be persuaded out of the near conviction , that the campaign here is to make sure that she is put at the maximum disadvantage by the non-compliance with orders

And impliedly furious with the husband’s alleged delay and prevarication:

What good would that do [the wife] if he chose to depart on his flying carpet

It is Ramadan quite soon…”

The Sheikh would be here to see that no stone is unturned, every grain of sand is sifted.

And commenting upon the husband’s potentially evasive affidavit evidence, Singer J asked of the advocate:

“A bit gelatinous is it?... Like Turkish Delight?”

But, perhaps fatally, Singer J. went slightly too far when prophetically he observed that:

“…I have formed a view about this case, not dissimilar from that which Thorpe LJ formed [in an earlier interlocutory appeal] and maybe I should not ultimately take the final hearing…”

Nevertheless, confronted by the import of these comments, Singer J refused to recuse himself.  The Court of Appeal however took a rather different approach and reversed him holding that:

“Making every allowance for the jocularity of the judge's comments, one cannot in this day and age and in these troubled times allow remarks like that to go unchallenged. They were not only regrettable…they were also quite unacceptable. They were likely to cause offence and result in a perception of unfairness. They gave an appearance to the fair-minded and informed observer that that there was a real possibility that the judge would carry into his judgment the scorn and contempt the words convey. Singer J. may talk too much; yet he is a good judge. Unfortunately for him and for all of us, on this occasion he crossed the line between the tolerable and the impermissible.”

Whether Singer J ‘crossed the line’ and created the ‘appearance of bias’ is ultimately a matter of impression.  Ward LJ applied the correct legal tests to the facts and gave a judgment in which Mummery and Wilson LJJ’s concurred.

This article dedicated to the exposition and critique of just one paragraph of the judgment. Ward LJ entitled it “A postscript’. It is at best an obiter dictum, but therein he suggested a new procedural approach practitioners might adopt to the ‘recusal’ process.

We should emphasise that Ward LJ labelled the paragraph in issue a ‘postscript’. It is perhaps therefore best viewed as a judicial ‘after-thought’. Nevertheless, Mummery and Wilson LJJ’s agreed with Ward LJ without any dissent.  Whilst Singer J’s recusal has attracted much comment, the ‘postscript’ has not. Before the new procedures postulated in El Faragy are adopted and gain their own momentum, we propose herein to at least ‘test’ them and aim to demolish them. As you have read above, Ward LJ intimated that Singer J might ‘talk too much’. It is difficult for us to resist the mischievous temptation to submit that Ward LJ has in his ‘postscript’ perhaps fallen prey to the same vice.

Ward LJ said this

It is an embarrassment to our administration of justice that recusal applications, once almost unheard of, are now so frequently coming to this Court in ways that do none of us any good. It is, however, right that they should. The procedure for doing so is, however, concerning. It is invidious for a judge to sit in judgment on his own conduct in a case like this but in many cases there will be no option but that the trial judge deal with it himself or herself. If circumstances permit it, I would urge that first an informal approach be made to the judge, for example by letter, making the complaint and inviting recusal. Whilst judges must heed the exhortation in Locabail not to yield to a tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague. If a judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, hard though it is to sit in judgment of one's colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour.”

The first and second sentences are curious and potentially contradictory. It is difficult to understand why ‘recusal’ applications represent an embarrassment to the administration of justice.  Stranger still that if they are embarrassing, it is right that they are made. At first blush one would have thought that their existence is a practical exposition of the legal system’s adherence to the cardinal principles of fairness and impartiality. So perhaps contextually, Ward LJ might be suggesting that judges are either sitting when they ought not to, or improper applications are being made to recuse them or a combination of both. Either way, these opening sentences communicate judicial disquiet or uneasiness with the present procedures.

Nevertheless, two propositions can be extracted from the remainder of the above passage:

(1)  Before a formal application to recuse a judge is made, it is preferable that an ‘informal approach’ be made to the judge making the complaint and inviting his/ her recusal;

(2)  Where practical, it is preferable for a recusal application made against one judge to be heard by another judge.

We turn to argue that each of these two proposals are for differing, reasons defective.

The ‘Informal Approach’

It is to be borne in mind that the ‘postscript’ is made in the context of an appeal from the Family Division and historically ‘private’ hearings in that Court are generally the rule rather than the exception. Thus it might be said that the ‘informal approach’ is to be limited to that Court. However the judgment does not say so in terms. It is even more challenging to discern any legitimate distinction between recusal applications in a family case as opposed to any other type of civil case. Further, if it applies to civil cases why, by extrapolation, should it not logically apply to criminal cases. The proposition appears to be advanced as one of general application.

With respect to Ward LJ it is submitted that the validity of the proposal that in the first instance a party objecting to a judge should make an ‘informal approach’ to that judge can not withstand legal scrutiny. The seeds for its destruction lay in the genesis of the common law rule against the appearance of bias. It is neatly encapsulated by Lord Hewart CJ’s pithy statement that:

 “Justice must not only be done, but must be seen to be done.”

The common law has long recognized that the Courts do not exist in a vacuum. They exist to dispense justice according to law and that public confidence is maintained by the openness and transparency of this process. The obvious point is that ‘recusal’ is not some ‘private’ process transacted between the judge and the litigants: it is primarily about maintaining the public’s confidence and trust in the justice system by verifying the judge’s impartiality and thereby his independence.  This wider ‘public interest’ consideration is not vindicated if Ward LJ’s ‘informal approach’ model is adopted.

The legal objection is subtle but concrete. For reduced to it’s basic elements Ward LJ’s prior decision that Singer J ought to be recused rested on the premise that his ‘remarks’ had resulted in a situation whereby if he adjudicated,  justice would not be ‘seen’ to be done. But by parity of logic justice is not ‘seen to be done’ if litigants can recuse judges informally and behind closed doors.

It is thus a tragic irony that whilst it purports to champion the ideal that the ‘fairness’ of the judicial process fundamentally rests upon the impression of the “fair minded and informed observer”, the Court has casually alienated that touchstone by espousing an ‘informal approach’ recusal process that hides itself away from the ‘observer’ and divests him of the ability to be ‘informed’.

It is submitted that there is no justification for departing from that ancient common law principle. It is striking that Ward LJ fails to identify any reason for so doing, let alone a compelling justification. There were two other judges in the Court of Appeal and it is perhaps disappointing that none of them appear to have considered either the constitutional implications of the ‘informal’ process being adumbrated or even the effect thereon of the Article 6 ECHRFF guarantees or public policy.

Properly stripped down, it is submitted that there is no intellectual consistency in the rationale of El Faragy. It applied with rigour the ‘fairness’ principle to the Singer J, but neglected to do the same to Ward LJ’s proposals that the ‘recusal’ process may be conducted ‘informally’ and away from the public gaze.

Further, Ward LJ implies in the following passage that recusal is discretionary:

Whilst judges must heed the exhortation in Locabail not to yield to a tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague.”

With respect that is wrong and flatly contrary to authority. The notion that a judge can pay lip service to Locabail, deny the criticism but just pass the case on to a colleague is anathema to every concept of open justice. It is neither a question of ‘honour’ or discretion. Both a judicial oath and a public expectation stand as insurmountable obstacles to such an allegedly pragmatic course. The legal test for bias is not to be casually cast aside. It is most curious that Mummery LJ purported to agree with Ward LJ’s above statement because in AWG Ltd v Morrison [2006] 1 W.L.R. 1163, at para 20 he had previously opined to the very opposite. He said:

“…I do not think that disqualification of a judge for apparent bias is a discretionary matter. There was either a real possibility of bias, in which case the judge was disqualified by the principle of judicial impartiality, or there was not, in which case there was no valid objection to trial by him.” 

These two statements are logically irreconcilable and represent a spectacular demonstration of the Court’s double standards in El Faragy. It apparently unwittingly applies a stricture to the judge it fails to apply to its own ‘postscript’ proposals. Ward LJ’s judgment does little to inspire public trust in the transparency of the judicial process. He purports to authorize ‘secret communiqués’. He does not inform the reader who is to be privy to these communications, how the principles of audi alteram partem are to be safeguarded or even applied, how a reasoned judicial decision is to be rendered or publicly pronounced or to even challenge this ‘informal approach’. If  SingerJ. “may talk too much” then it is submitted his error is rather minor beside that perpetrated by Ward LJ.

The ‘informal approach’ is a repudiation of one of the most basic tenets of English law:  litigants are not to have secret communications with the judges determining their disputes. Justice is to be done openly. As Mummery LJ took pains to emphasise in AWG Group Ltd v Morrison [2006] 1 W.L.R. 1163 at para 29:

“[I]nconvenience, costs and delay do not… count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

At a stroke the judgment of Ward LJ paves the way for ‘informal’ approaches to judges by partisan lawyers representing litigants in pending cases before those judges. Maybe with a little pressure here and a little nudge there the skilled can thereby replace one judge with another they find preferable. Presumably, ‘telephone calls’ or little ‘chats’ in some of London’s prominent private members clubs are to be permitted.  If  that is the Court of Appeal’s idea of a strong, fair and independent judiciary, then we respectfully dissent. We can not think that this is what the ‘postscript’ in El Faragy intended. The sooner the Court of Appeal recants from this heresy the better.

The second proposition advanced in El Faragy is that where a formal application to recuse a judge is made, it is preferable that whenever practicable that application be heard by another judge. We make two objections to this proposition: one legal, the other pragmatic.

The Legal Objections

It is challenging to glean what the Court of Appeal intended to achieve with this proposition. The “core concept” must be that it is wrong or somehow contrary to natural justice for a judge to effectively sit upon judgment upon himself.  If that is the Court’s legal premise in El Faragy, we submit that it is per incuriam.

In Sengupta v Holmes [2002] EWCA (Civ) 1104 the CA was confronted by a challenge to the constitution of the panel of judges. One judge had previously denied permission to appeal in the same case and - the argument ran - he should be recused from the appeal – having previously expressed the lower court’s decision was correct. This argument was rightly and resoundingly rejected.

Laws LJ in this edited passage from Sengupta shows in his reasoning “the difficulties” with the El Faragy “postscript”:

It is not only lawyers and judges who in various states of affairs may be invited — they may invite themselves — to change their minds… a readiness to change one's mind upon some issue… is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis… However much we may in the name of public confidence be prepared to clothe our [objective fair minded] observer with a veil of ignorance, surely we should not attribute to him so pessimistic a view of his fellow-man's own fair-mindedness as to make him suppose that the latter cannot or may not change his mind when faced with a rational basis for doing so… [J]udges in fact change their minds under the influence of oral argument…. Knowledge of it should, in my judgment, be attributed to the fair-minded and informed observer; otherwise the test for apparent bias is too far distant from reality. It is a commonplace for a hearing to start with a clear expression of view by the judge… which may strongly favour one side; it would not cross the mind of counsel on the other side then to suggest that the judge should recuse [himself]… Another aspect of our legal culture is the expectations which the judges have of each other. Far from supposing that his fellow-judge would or might stand by an earlier view for no other reason that he had formed it, any judge would positively expect that his fellow would without cavil alter his view if he were objectively persuaded that it ought to be altered; and, to be blunt, would think much the worse of him if he would not. This too, it seems to me, would be known to the bystander.”

Contrary to the implication of El Faragy, it is evident from Sengupta and that a judge is presumptively sufficiently intelligent, flexible and capable to adjudicate upon an allegation that his continued involvement in the case will unlawfully breach the rule against bias. The judge is not – as Ward LJ insinuates – inherently incapable of fairly and judiciously applying the legal tests to himself.

That is not to say that the judges are invincible. If a judge erroneously fails to recuse himself, then the appeal court stands ready to correct that error. But it is to go too far to lay down a blanket proposition that it is ‘preferred’ that a judge faced with a recusal application should start from the premise that another judge should determine it.

It is one thing for the CA to entertain some sense of disappointment with the frequency with which it has, of late, reversed some high profile recusal decisions. But it is quite another for it to interpret that state of affairs as indicative of an endemic failure by judges of first instance to correctly deal with such applications so as to justify the CA implementing radical procedural change.  Further, it is arguable that it is unlawful for the CA to purport to issue such ‘guidance’ in civil cases. Section 1(1) of the Civil Procedure Act 1997(“CPA 97”) specifically provides that:

There are to be rules of court (to be called “Civil Procedure Rules”) governing the practice and procedure to be followed in [the civil courts]”

It is a legal axiom that the common law can not survive specific statutory intervention.

By s. 2 of the CPA 97 the power to make those rules is vested in the Rules Committee and not with respect, Ward, Mummery and Wilson LJJ’s powerful though their views may be. Thus the ‘postscript’ in El Faragy is not merely erroneous but ultra vires. If the senior judiciary wish to change the procedures there is a specific statutory procedure. Otherwise the postscript represents “the naked usurpation of the legislative function”.

The Practical Objections

Assuming that, notwithstanding our above critique, the El Faragy postscript is to be applied by the lower Courts, we rhetorically ask how it is ‘guidance’ is to be practically implemented on the ground?

Applying El Faragy what happens if on day one in a normal trial, the trial judge gives an ‘indication’ as explicitly contemplated in Sengupta and one side takes issue with it and applies to recuse the judge?  Is it sensibly to be suggested that proceedings are suspended whilst another judge within say the same building is found to ‘rule’ on the objection?

We do not answer these questions for you. Put bluntly: the El Faragy test lends itself to a chaotic disruption of the trial process. The practical consequences of the El Faragy postscript have not been thought through.

 The El Faragy ‘postscript’ might usefully serve to open the ‘procedural’ debate in favour of a rule change. But it does no more. It lacks a sufficient basis in English common law and does not withstand analytical scrutiny. Thus for the aforesaid reasons we consider Ward LJ’s suggestions to be jurisprudentially heretical, irrational and frankly best ignored.