When a judge is disqualified from judging

Family Law|August 7th 2019

It is normally of course the case that any one of the available pool of judges may deal with any particular case, provided that they are qualified to do so, and provided that there is no conflict of interest, for example because they have a personal relationship with one of the parties. Sometimes, however, a judge may be disqualified from dealing with a case because he has dealt with it previously.

An example of this occurs in financial remedy proceedings. At an early stage in the proceedings the court will usually fix a ‘Financial Dispute Resolution’ appointment, or ‘FDR’ for short. The purpose of the FDR is to provide the parties with an opportunity to agree matters. The judge conducting the FDR will assist them in this, in part by expressing his or her provisional views as to the outcome of the case, thereby making the parties aware of the reality of their case, and thus encouraging negotiation. The rules specify that if the matter is not agreed and therefore has to proceed to further hearings, the judge conducting the FDR will not be allowed to play any further part in the case. In this way, the judge is able to speak freely at the FDR, without fear of ‘pre-judging’ the case. The judge may also hear evidence in the FDR that they would otherwise not.

But what if the case has been to a final hearing, but there are then further matters for the court to deal with? Is the judge who deal with the FDR still disqualified from dealing with those matters? This was the question that required an answer in the recent High Court case Shokrollah-Babaee v Shokrollah-Babaee.

The relevant background facts in the case were as follows. The parties had been married (or lived together) for some twenty-five years, and had three grown up children. The marriage broke down, divorce proceedings were issued and, within them, financial remedy proceedings. The financial remedy proceedings have been ‘protracted and highly contested’, including in excess of fifteen hearings, and running up total costs of at least £2.2 million.

What was intended to be the final hearing took place before Mr Justice Baker (as he then was), over eleven days spread out between February and April 2018. A final order was eventually made in March this year, including a provision for the husband to pay maintenance to the wife from September 2018, at the rate of £10,000 per month. Accordingly, by the time the case went before Mr Justice Holman last month the husband should have paid £110,000. In fact, he only paid £2,500, meaning there were arrears of £107,500.

The wife instigated enforcement proceedings, including a judgment summons application which, in theory at least, could have meant the husband was committed to prison for non-payment of the maintenance. This had the usual effect of stirring the husband into making a cross-application to reduce the maintenance, rather than simply ignoring the order.

The various applications were, as indicated, listed for hearing before Mr Justice Holman in the High Court. The hearing went ahead but unfortunately nobody noticed, or at least nobody mentioned, that he was the judge who had conducted the FDR in the case, in December 2017 (none of the lawyers who had appeared at the FDR were still dealing with the case). Then, in the course of the hearing, the husband mentioned that Mr Justice Holman had been the judge who had conducted the FDR. At that point he stopped the hearing.

The question, therefore, was: could Mr Justice Holman continue to deal with those applications?

As I mentioned, the rules state that: “The judge hearing the FDR appointment must have no further involvement with the application, other than to conduct any further FDR appointment or to make a consent order or a further directions order.” Note the word ‘must’. (‘Application’ refers to the financial remedy application.) Does this rule only cover the application up to the final hearing, or does it cover everything until the application is finally concluded?

I don’t need to go into the legal arguments here. Suffice to say that Mr Justice Holman found that the effect of the rule was that the judge could not play any further part in the proceedings at all, even if the parties sought to waive the rule. Accordingly, the hearing before him could not continue, and the case would have to be heard by a different judge.

The full report of the judgment can be found here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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