Judges, barristers and friends

Family Law|September 17th 2015

A few years ago, I accompanied a client to court down in London. Her case proceeded much as expected that morning, but things took an unexpected turn at lunchtime. After our meal we were walking back to court down Fleet Street when my client was horrified to see the Judge in her case chatting casually to the opposing QC.

She was very upset and I had to work hard to calm her down. It didn’t matter if the Judge and opposing counsel knew each other socially, I assured her. No judge worth their salt would allow any such friendship to influence their judgement, I insisted. And I was right. The case settled. But it was an uncomfortable moment. I could see how things looked from her point of view. An alarming crack had appeared in that façade of elevated impartiality so important to the role of Judge.

But the simple truth is this. Not only do they come from similar public school backgrounds and move in the same professional circles, Judges and barristers encounter each other regularly in the courtroom. What’s more, most Judges are former barristers themselves, so socialising with their pals from the Bar must seem like the most natural thing in the world. But Judges know they still need to do their jobs properly. They know that justice will not be served and their careers will suffer – or even end – if they fail to do so.

Members of the public, however, may not see things that way at all. Most simply do not understand the subtleties of legal roles and the intricate relationships between them. All my client saw that day was the Judge in her stressful case getting pally with the opposing side’s barrister and quite naturally she thought that meant she might not get a fair hearing.

I was reminded of her reaction by the newly published case of Welch v Welch, which blog stalwart John Bolch discusses in his story today. In this complicated financial dispute between a divorcing husband and wife, the latter applied at one stage for the presiding Judge to recuse himself on the grounds that he knew the QC then representing her husband. In the High Court, Mr Justice Holman explained:

“The essential basis of that seems to have been that the wife believed that District Judge Hess and leading counsel, who from time to time acted for the husband, namely Mr Patrick Chamberlayne QC, had some sort of familiarity with each other, and specifically that they had both spoken together at some seminar a few months earlier.”

In fact, he continued, each had been speaking at seminars organised by the same company but in different cities. District Judge Hess had refused her application, noting quite rightly that “every single barrister in this field” probably encountered Judges at “casual social encounters”.

The wife pursued the matter, however, seeking, amongst a number of other issues, permission to appeal District Judge Hess’ refusal to withdraw from the case.

Justice Holman was unsympathetic.

“I refuse permission to appeal. I absolutely agree with every word that District Judge Hess said in his judgment on that topic. Frankly, if every time a judge had had some passing encounter, social or otherwise, with a specialist barrister in a specialist field the judge had to recuse himself, there would be few cases that could be effectively heard.”

Quite so. But as customer-facing legal professionals, we solicitors must think beyond the practicalities and realities of the legal world and consider matters from the point of view of our clients. The lady with me on Fleet Street that day was genuinely concerned. I doubt the Judge and QC in question had given any thought to the possibility that she might see them standing there, chatting like old friends.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Andrew says:

    Marilyn, as a practitioner, do you share my view that Withers were badly treated in the Welch case? If an ex-husband ought to give an ex-wife a lump sum, he ought to give her a lump sum, and if her judgment creditors seize it, well, that is the law taking its course, isn’t it?

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