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Mackay v Mackay [2015] EWHC 2860 (Fam)

Date:20 OCT 2015
Third slide
Law Reporter
(Family Division, Holman J, 18 September 2015)

Practice and procedure – Recusal – Divorce proceedings – Judge and husband had common associate – Whether the judge should recuse himself from the case

The full judgment is available below

In divorce proceedings it came to light that the judge and the husband had an associate in common and the judge, therefore, recused himself from the case.

In divorce proceedings the husband and wife negotiated a financial agreement on the basis of the factual presentation of their respective financial positions. After a consent order was made the wife applied to set it aside on the basis of material non-disclosure in relation to the sales figures of the husband’s company.

During the course of those proceedings the husband’s legal team drew the court’s attention to the fact that the husband and the judge had a common interest in sailing and that the husband knew that the judge was a member of a specific sailing club to which some of the husband’s friends also belonged. A list of 14 names was produced to the judge and one name was found to be a common associate of the husband and the judge. It, therefore, fell to be determined whether the judge should recuse himself from the case.

It was well established that in cases where recusal was being considered the answer would be obvious. If there was real ground for doubt then the court should decide in favour of recusal.

In this case there was a possibility that a judgment might need to be taken on the integrity and honesty of the husband given that the wife claimed the husband had deliberately withheld information regarding the sale of his company. If the judge and the husband shared a common associate then it could be a source of personal embarrassment to the judge if he had to decide that the husband had acted in a fraudulent, devious or untruthful way. In the period before the next hearing there would be occasions when the judge would be meeting the common associate and that amounted to a solid reason why the judge would be personally embarrassed about further involvement in the case. The judge recused himself. 
Neutral Citation Number: [2015] EWHC 2860 (Fam)


Case No. FD11D06338

Royal Courts of Justice
Strand London WC2A 2LL

Date: Friday, 18th September 2015


(Sitting throughout in public)

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Transcribed from the Official Tape Recording by
Apple Transcription Limited
Suite 204, Kingfisher Business Centre, Burnley Road,
Rawtenstall, Lancashire BB4 8ES
DX: 26258 Rawtenstall – Telephone: 0845 604 5642 – Fax: 01706 870838

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Counsel for the Applicant: MR NIGEL DYER QC & MR ALEXANDER THORPE Instructed by Franklin Price and Simon Lackie of Jeffrey Green Russell Limited
Counsel for the Respondent: MR VALENTINE LE GRICE QC & MR MARK EMANUEL Instructed by Simon Bruce, Claire Gordon and Rebecca Heyworth of Farrer & Co LLP

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[1]  In this short ex tempore judgment I explain and record why I have decided that I should not have further involvement in this particular case. For the purposes of this judgment, I can summarise the essential factual context extremely shortly. There have been divorce proceedings between these parties. In November 2014, there was a final consent order for financial provision by the husband for the wife. That order was clearly negotiated and agreed on the basis of a certain factual presentation as to the parties’ respective financial positions. That included evidence or material with regard to the value of the husband’s majority shareholding in a company which appears to be the principal asset of these parties. As I understand it, the value that was taken as the basis of that consent order was a value of about £X million for the company as a whole, and £Y million for the husband’s shares in it.

[2]  Subsequent to the consent order being made, the wife appears to have learned that in a period prior to that order being made and whilst these proceedings were current, the husband had been, or may have been, in some communication or negotiation with a possible purchaser for his shares, or all the shares, in the company at a figure very considerably greater than the figures I have mentioned. As a result, the wife has made an application for an order setting aside the order that was made in November 2014 on the basis of material non-disclosure. If that order is set aside, then she seeks a reconsideration of her claims for financial provision and, obviously, a significantly higher award than that which was agreed and ordered in November 2014.

[3]  By an earlier order in the current proceedings, a two-stage process was identified whereby this case was listed for several days in mid-October 2015 for consideration of whether or not the existing order should be set aside; and a further hearing during February 2016 in the event that the existing order was set aside. I have apparently been identified for some time as the judge who would conduct both those hearings and, accordingly, this pretrial directions hearing today.

[4]  As it happens, there could not, realistically, be an effective hearing of the set aside application as early as mid-October 2015. The reason for that is that it is well-known that in June 2015 two cases were argued and heard before the Supreme Court called Sharland and Gohil which clearly involve consideration of the appropriate principles and approach on set aside applications of this kind. Today is 18th September 2015, still in the legal vacation, and it is not known when the Supreme Court will deliver their judgments in those cases. To my mind, it is completely inappropriate that this court should embark on any substantive consideration of set aside until the decision and judgments of the Supreme Court in those cases are published and known, so, on any view, the set aside hearing could not take place on the dates fixed in mid-October.

[5]  I personally have had no prior involvement in this case whatsoever prior to today. Very early in the hearing today, Mr Valentine Le Grice QC, who appears today on behalf of the husband (but does not act for him generally in these proceedings), said that there were certain facts that he, Mr Le Grice, had been informed about that required to be drawn to my attention in case they impacted upon the appropriateness of my dealing with this case at the substantive hearings. There has been no suggestion, nor could there be, that I should not deal with this directions stage of this case today. I was somewhat surprised to hear that, since the full names of the husband simply do not impact upon me at all and, to put it bluntly but colloquially, I have simply never ever heard of him before. Further, when the husband came into court, he is not somebody who, frankly, I have the least recognition of, or the slightest recollection of ever having met; nor, indeed, do I have the slightest recognition of the wife, who is also in court.

[6]  I am a very open judge and I have never concealed, for instance by entries in “Who’s Who” and Debrett’s “People of Today”, that one of my recreations is sailing. I was told that the husband is also keen on sailing. I have been told that he thinks that in the more distant past he has competed in boats racing against boats in which I myself was also racing. Whether or not that is so is, frankly, completely irrelevant to the situation with which I am now faced. However, I was also informed that the husband knew that I am a member (as I am) of a certain sailing club. He is not a member of that club. He is a member of another sailing club of which I am not a member, but the question was raised whether, through my membership of the sailing club, I might know or have friendship with certain sailing friends of the husband. A list containing 14 names was then produced to me. It is right to say that I recognised as names every name on that list. The majority of the people named I do not personally know at all. One or two of the others on the list I know very slightly or have met at some stage in the past. None of that, frankly, impacts on me at all. However, there is one name on the list which for the purposes of this judgment I will call “AB” (although those are not the person’s actual initials). I was told that he is somebody whom the husband knows well. I was told that, in the past, there have been business dealings between, or involving, the husband and AB. I was told that the husband currently meets AB about once a month and met him as recently as about two weeks ago. I was told that in the past AB has stayed at these parties’ villa in the south of France whilst participating in a sailing event.

[7]  On behalf of the wife, Mr Nigel Dyer QC said on instructions that she did not appreciate that, and doubts whether, the true strength and extent of the connection between the husband and AB is as great as has been described by Mr Le Grice. Without hearing oral evidence on the point, which would be disproportionate and extraordinarily invidious, I have to take the state of affairs as being as described by Mr Le Grice.

[8]  AB is not someone whom I would describe as a close personal friend of mine. He is, however, someone whom I have known for many years. There is, undoubtedly, friendship between us, friendship also between him and my wife, and friendship between me and his wife. He and his wife are people whom I and/or my wife meet from time to time in the sailing social context, and we and AB have numerous other mutual friends in common.

[9]  The question that arises is whether that connection of a shared mutual relationship with AB is such that I should not have further involvement in this case. The expressed position of Mr Le Grice on behalf of the husband was that he was merely drawing these facts to my attention so that I should be aware of them. There was no application by Mr Le Grice that I should recuse myself as a result of them.

[10]  The position of the wife, after Mr Dyer had had an opportunity privately to discuss the matter and take instructions from her, was that she was not concerned about this mutual relationship and that she did not apply that I should recuse myself. The position of the wife did, however, go further than that. One of the applications that was issued by the husband on 11th September 2015 and returnable today was for orders to do with privacy. He sought orders that the hearings in October and February should be heard not only in private, but with the press and media excluded; and, further (most unusually in my experience) some advance order as to the terms in which any judgment might ultimately be couched. To exclude the press even from a hearing held in private is these days a strong step, and one which can only be taken in tightly circumscribed circumstances provided for in the relevant rules and practice direction; but it is known at the Bar that I am a judge who favours as much openness as possible in all court proceedings. Mr Dyer, frankly, speculated that the purpose of the husband in even referring to the possibility of overlapping friendships was a device deliberately aimed at causing me to recuse myself.

[11]  It is, indeed, of the utmost importance that judges are very astute to spot, and not be trapped by, attempts to manipulate the identity of a judge for whatever purpose. Obviously, there may be judges who are believed to make high awards or low awards, and it is only too easy for a party who is seeking a low or a high award respectively to try to manipulate the position so that that judge is unable to hear the case. Similarly, it would, indeed, be intolerable if parties could manipulate the position so as to obtain or avoid, according to where their interests lay, a judge who favours openness in legal proceedings as opposed to secrecy. I am very alive to that risk.

[12]  Unquestionably, if nothing had been said today about this shared interest in sailing and the possibility that there may be some overlapping friendships, then I would have continued to deal with this case and there could not have been the slightest difficulty. The fact is that the point has been raised. The fact is that it has been identified that amongst the friends or associates of the husband is this person, AB, who is also a friend of mine.

[13]  The leading authority on the circumstances in which a judge should recuse himself probably remains Locabail (UK) Limited v Bayfield Properties Limited and others [1999] EWCA Civ 3004, a judgment of the court consisting of the then Lord Chief Justice, Master of the Rolls and Vice-Chancellor. The situation with which I am faced today is not one that falls within the principles which are the focus of that judgment. There is no question in this case of my having any kind of interest in the outcome of these proceedings and, in my view, no question in this case of any possible objective or apparent bias. Indeed, at paragraph 25 of their judgment in that case, the Court of Appeal were at pains to list many circumstances upon which, at any rate ordinarily, no objection could soundly be based. But at paragraph 21 of the judgment there is reference, albeit passing, to a judge recusing himself, “If, for solid reasons, the judge feels personally embarrassed in hearing the case.” Further, the broad approach at paragraph 25 is as follows:

“In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case.”

[14]  I have given very careful consideration indeed to this matter. Apart from some obvious situations where I actually knew a party concerned, I can only recall one occasion in the over 20 years in which I have been a full-time judge, in which I have felt the slightest need to recuse myself for considerations of this kind. In that case, I had a long-term friendship dating back to university with the brother of the husband in the case. Although the brother did not feature at all in the case, it did not seem to me appropriate that I should hear it. This case is more remote than those facts, but I have decided that I do, or might, “feel personally embarrassed” in hearing this case.

[15]  I wish to stress that I believe myself to be an independent-minded and fearless judge. I do not doubt my ability to be detached and objective in decision-making. But the context of this case, as I have outlined above, does, or may, involve making a judgment about the integrity or probity, and possibly the very honesty, of this husband. I do not yet know much about the facts, nor, of course, how the evidence may turn out. But, at any rate at its highest, the wife’s case will involve a proposition that the husband deliberately failed to disclose the discussions that he was having for the sale of his company at that much greater value, and may well involve the proposition that, at some stage or another, he deliberately lied or, certainly, deliberately suppressed the truth. If there is a common friendship with AB, I do feel that it could be a source of personal embarrassment to me in my relationship with AB if I had to find that another friend of his had acted in a fraudulent, devious or untruthful way.

[16]  There is the further consideration in this case that, currently, a two-stage hearing is envisaged, with some months between the first and second stage. Undoubtedly, during that interval, there will be occasions upon which I will be meeting AB, since, as I have said, he is a friend whom I do meet from time to time.

[17]  It seems to me that what I have described does amount in this case to “solid reasons” why I personally, as I do, feel personally embarrassed about further involvement in this case. For those reasons, I must, as I now do, recuse myself from any further involvement in the case after today.

[18]  Fortunately, enquiries made today have enabled dates to be found when there can be hearings, either a composite hearing or a split hearing, before another judge. Both parties have expressly said that neither of them are aware of the least reason why that judge could be in any way at all compromised about hearing this case.
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