ANCILLARY RELIEF: El-Farargy v El-Farargy [2007] EWCA Civ 1149

15 NOV 2007

(Court of Appeal; Ward, Mummery and Wilson LJJ; 15 November 2007)

In what the court described as a singularly unsatisfactory, unfortunate and embarrassing matter, the court allowed an appeal by a third party against the judge's refusal to recuse himself. Although the judge's comments did not indicate that he had already closed his mind, his thoroughly bad jokes concerning flying carpets, sifting through sand, the Ramadan fast and Turkish delight had been, given that the third party was a Muslim Sheikh from Saudi, impermissible. While the injection of a little humour lightened the load of high emotion that so often attended litigation, these remarks would inevitably be perceived as racially offensive jokes. The court acquitted the judge of any suggestion that they were intended to be racist, but such remarks were unacceptable; they were likely to cause offence and result in a perception of unfairness, and gave an appearance that the judge would carry into his judgment the scorn and contempt conveyed by the words. The court urged that recusal applications ought first to be by an informal approach to the judge, for example by letter, making the complaint and inviting recusal. If a judge did not feel able to pass the case to a colleague, it might be preferable, if it was possible to arrange it, to have another judge take the recusal decision, for where the appearance of justice was at stake it was better that justice be done independently by another than that the judge be required to sit in judgment of his own behaviour.

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