El-Farargy v El Farargy & Ors

The test for apparent bias is objective: would a fair-minded and informed observer, having considered the facts, conclude that there was a real possibility of bias? A judge may express a firm preliminary view during extensive interlocutory proceedings without necessarily appearing biased, provided the observer would understand that the judge remains open to persuasion.

But gratuitous humour capable of being perceived as mocking a party’s ethnicity, nationality, religious faith or status may create an appearance of bias. This is so even where the judge did not intend to cause offence or act with racial prejudice. The appearance of impartiality is fundamental, and judicial comments which convey scorn or contempt can require recusal.

In contentious ancillary-relief proceedings, the third respondent asserted that he was the beneficial owner of the company which held the former matrimonial home. At a pre-trial review, Singer J made remarks about the husband’s litigation conduct and several humorous comments concerning the third respondent’s status, Saudi nationality, Arab ethnicity and Muslim faith.

The third respondent applied for Singer J to recuse himself for apparent bias. Singer J dismissed the application on 10 July 2007. The third respondent appealed to the Court of Appeal. The central issue was whether the judge’s comments would lead a fair-minded and informed observer to conclude that there was a real possibility of bias.

1. Appeal allowed unanimously. Ward LJ, with whom Mummery and Wilson LJJ agreed, held that Singer J should have recused himself. The refusal order and the costs order against the third respondent were set aside. The proceedings were directed to continue before a different Family Division judge.

2. The governing test, drawn from Porter v McGill [2001] UK HL 67, was whether a fair-minded and informed observer would conclude, on the facts, that there was a real possibility that the tribunal was biased. The question concerned appearance, not proof of actual bias. The observer was neither complacent nor unduly sensitive, and would recognise the judicial duty to decide cases with an open mind.

3. The judge’s references to his prima facie view, his “near conviction”, and the husband’s apparent campaign did not independently require recusal. In the exceptional procedural history, the judge was entitled to form and express a strong provisional view about the husband’s conduct. A fair-minded observer would understand that such a view could be changed by the evidence and submissions at trial.

4. The humour directed at the third respondent was different. References to a flying carpet, grains of sand, Turkish Delight and a relatively fast-free time of year were unnecessary to the judicial points being made. Although Ward LJ was satisfied that Singer J had not intended racism, the comments would inevitably be perceived as mocking and disparaging the third respondent’s status, nationality, ethnicity or faith. They were likely to cause offence and conveyed an appearance that the judge might carry scorn and contempt into the final determination. That created a real possibility of apparent bias.

5. In a postscript, the court advised that, where practicable, a recusal complaint should first be raised informally with the judge. If arrangements permit, another judge should decide a contested recusal application, since it is undesirable for a judge to rule on an allegation concerning that judge’s own conduct.

• Court of Appeal (Civil Division): allowed the third respondent’s appeal in [2007] EWCA Civ 1149; set aside the refusal of recusal and the costs order; directed that the matter be heard by another Family Division judge.
• Family Division: Singer J dismissed the third respondent’s recusal application on 10 July 2007.