Court of Appeal
Published November 23, 2007
El Farargy v El Farargy and Others
Before Lord Justice Ward, Lord Justice Mummery and Lord Justice Wilson
Judgment November 15, 2007

Where the appearance of justice was at stake, it was better that justice be done independently by another, rather than require a judge to sit in judgment of his own behaviour.

The Court of Appeal so stated when giving reasons for allowing an appeal on August 1, 2007 by the third respondent, Sheikh Khalid ben Abdullah Rashid Al Fawaz, against the dismissal by Mr Justice Singer on July 7, 2007 of his application for the judge to recuse himself on the ground that comments made during the course of a pretrial review in ancillary relief proceedings betrayed apparent bias.

The sheikh claimed to be beneficial owner of the company which purchased the matrimonial home and was supported by the husband. The wife asserted that the family home belonged to her and her husband.

The judge had made jocular references to flying carpets, grains of sand, a fast-free time of year and Turkish Delight.

Mr John Randall, QC, who did not appear below, and Mr Huw Jones for the sheikh; Mr Philip Cayford, QC and Miss Victoria Domenge for the wife.

LORD JUSTICE WARD said that a directions hearing took place in September 2006.

It was during that hearing that Mr Justice Singer made the comments which led to the application that he recuse himself in March 2007. The judge refused to do so.

The litigation had been conducted in an extraordinary way, especially by the husband. He had shown himself to be contemptuous of his wife and equally contemptuous of orders of the court, as the court had found on a number of occasions.

Mr Justice Singer was very alive to, and concerned by the time the case was taking to get to trial. When the appeal came into the list, his Lordship was aghast at the prospect that allowing the appeal would have the effect of putting the hearing back another year to 2008.

One of the unsatisfactory features of the case was the length of delay the Family Division was having to endure in such cases. There were not enough judges to deal with complicated big money cases which took second place to children’s cases.

Mr Justice Singer was rightly concerned about the application to recuse himself and the effect it would have on the fixture. At the time he was told that there was no other judge available to replace him.

His Lordship mentioned that in fairness to the judge because the inference could be drawn that he would have released the case to another judge of the Division if that could have been arranged.

His Lordship had given most anxious thought to whether or not he was giving sufficient credit for the robustness of the phlegmatic fair-minded observer, a feature of whose character was not to show undue sensitivity.

Making every allowance for the jocularity of the judge’s comments, one could not, in this day and age, allow those remarks to go unchallenged. They were not only regrettable, and his Lordship unreserverdly expressed his regret to the sheikh, they were also 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 there was a real possibility that the judge would carry into his judgment the scorn and contempt that the words would convey. Unfortunately, Mr Justice Singer had crossed the line between the tolerable and the impermissible.

His Lordship added that it was invidious for a judge to sit in judgment of his own conduct but in many cases there would be no other option. Where circumstances permitted, first an informal approach should be made, for example, by letter inviting recusal to the judge, who might with honour deny the complaint but still pass the case to a colleague, or invite another judge to take the decision.

Lord Justice Mummery and Lord Justice Wilson agreed.

Solicitors: Wragge & Co LLP; CKFT Solicitors, Hampstead.

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