Mackay v Mackay

A judge may recuse himself where, despite being independent and objectively unbiased, he has solid reasons to feel personally embarrassed about hearing the case. The assessment is fact-sensitive. Any real ground for doubt should be resolved in favour of recusal. The court must also remain alert to attempts by parties to manipulate the identity of the judge.

The judgment concerned a directions hearing in financial remedy proceedings following a final consent order. The wife alleged material non-disclosure concerning the value and possible sale of the husband’s company shares and sought to set the order aside. Before the substantive hearing, the husband disclosed connections between the judge, a mutual sailing acquaintance and the husband. Neither party applied for recusal, but the judge considered whether the relationship might cause personal embarrassment when assessing the husband’s integrity and honesty.

1. The judge recused himself from any further involvement in the proceedings after the directions hearing.
2. The governing authority was Locabail (UK) Limited v Bayfield Properties Limited and others [1999] EWCA Civ 3004. The case did not fall within the usual principles concerning objective or apparent bias, and there was no personal interest in the outcome.
3. Nevertheless, the broad approach in [1999] EWCA Civ 3004 required the issue to be decided on the facts and circumstances of the individual case. Where there is real ground for doubt, that doubt should be resolved in favour of recusal. A judge may also recuse himself where, for solid reasons, he feels personally embarrassed in hearing the case.
4. The alleged non-disclosure could require findings about whether the husband had deliberately suppressed information or lied. Because the judge was friends with a person who was a close associate of the husband, and would probably meet that person during the interval between the proposed hearings, the judge considered that adverse findings could cause personal embarrassment in his relationship with the mutual friend.
5. The judge stressed that he regarded himself as independent, fearless and capable of objective decision-making. That did not prevent the identified personal embarrassment from constituting solid reasons for recusal. The court also had to remain alert to possible attempts to manipulate judicial allocation, including through allegations concerning openness or secrecy in proceedings.
6. Arrangements were made for the substantive hearings to take place before another judge, whom neither party considered compromised.

Not stated in the judgment.