It’s a tactic that must have been adopted by litigants ever since courts were first used: try to manipulate the identity of the judge who will deal with your case, in order to get a judge who is more favourable towards you. The way to achieve this, or at least one way, is to get an unfavourable judge to recuse themselves (i.e. to excuse themselves from sitting on the case), because of a potential conflict of interest or lack of impartiality.
Just the other day I wrote here about Mr Justice Holman’s approach to the issue of publicity in private family proceedings. As is well known, he prefers financial remedies cases listed before him to be conducted in open court. So, if you are involved in financial remedy proceedings and you particularly want the proceedings to be heard in private, you would probably prefer it if your case was not being heard by Mr Justice Holman.
In Mackay v Mackay, Mr Justice Holman was faced with just that possibility – a husband who may have been seeking for him to recuse himself from the case, because the husband wanted the proceedings to be heard in private. The case is also relevant to the Sharland and Gohil appeals, in connection with which the Supreme Court is due to hand down its judgment tomorrow, as it concerned a wife’s application for a consent order to be set aside on the basis of material non-disclosure by the husband.
Now, it should be emphasised that there is no evidence that the husband in this case was trying to manipulate the identity of the judge who dealt with his case. Indeed, there was no application by the husband for Mr Justice Holman to recuse himself. However, the husband’s counsel drew certain facts to the attention of Mr Justice Holman, in case they impacted upon the appropriateness of him dealing with the case.
Those facts were essentially that the husband and Mr Justice Holman are both keen on sailing and they apparently share a mutual friendship with another member of the sailing community. The question therefore arose as to whether that friendship was such that Mr Justice Holman should have no further involvement in the case.
Mr Justice Holman made it clear that he was alive to the risk that the husband might be seeking to manipulate who dealt with his case. However, after giving the matter careful consideration he reached the conclusion that he might “feel personally embarrassed” by hearing the case, particularly as the case might involve him in making a judgment about the honesty of the husband. If there was a common friendship, it could be a source of personal embarrassment to him in his relationship with that friend if he had to find that another friend of his had acted in a fraudulent, devious or untruthful way. There was also the further consideration that, currently, a two-stage hearing was envisaged in the case, with some months between the first and second stage. Clearly, during that interval, there would be occasions upon which Mr Justice Holman would be meeting the friend.
In the circumstances Mr Justice Holman felt he should recuse himself from any further involvement in the case.
An interesting judgment, demonstrating the fine line that has to be trod between the risks of impartiality and manipulation. The full report of the judgment can be read here.