COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION
THE HON. MR JUSTICE SINGER
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON LORD JUSTICE MUMMERY
THE RT HON LORD JUSTICE WILSON
| Wendy Ann El-Farargy
|- and -
|(1) Nael Mahmoud El Farargy
(2) McKellar Holdings Ltd
(3) Sheikh Khalid Ben Abdullah Rashid Al Fawaz
(4) Wena Hotels Ltd
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Philip Cayford QC and Victoria Domenge (instructed by CKFT Solicitors) for Wendy Ann El-Farargy
The 1st, 2nd and 4th respondents were not present or represented.
Hearing date: 1st August 2008
Crown Copyright ©
Lord Justice Ward:
"He [the husband] has not got a case left. He is the beneficial owner of McKellar. He might say, how I do not know, that he is holding it on behalf of someone else … on that issue his case has gone and everybody is running around struggling to reconstitute a case. … That is not a good way of doing litigation is it? Most judges would say, "Why are you doing this? Why having advanced one case, no mention of Sheikh Khalid to Investec, until the middle of this year?""
Singer J. would have been aware of those remarks because he had a transcript of the hearing before him.
"16. W's case is that there were no outside investment participants in their hotel business: it was purely and simply their family business. H says she knows quite well that there were outside participants and that she knows who they are: but he for his part refuses to identify them for reasons which he says justify his refusal.
17. As for W, she (and H) continue to live in the home she says she regarded as belonging to the family, and ultimately intended to pass to the spouses' adult son from whom H is now estranged. She claims that the wealth of the family is to be counted in millions of pounds sterling, rather than the far more modest sum maintained by H.
18. If W is correct in her case that McKellar is not beneficially owned by SK [the Sheikh], it must necessarily follow that H and SK will have conspired to present a false case to disadvantage W and to deceive the court.
19. … Meanwhile W has not received financial support during the lengthy period of this case to date in accordance with what H offered and agreed at an early stage, not withstanding my attempt to turn his agreement into an order. That order was the subject of an unsuccessful appeal permission application, refused by Thorpe and Scott Baker LJJ and Sir Martin Nourse on 6th December 2005 see  EWCA Civ 1770. …
20. Since that ruling H has not honoured his obligations precedent or subsequent nor has he complied with later orders made by me that he should contribute towards W's costs of this litigation. I have had to consider a Hadkinson application based on a number of breaches of court orders, some of them admitted. On 1st December 2006 I made an order the effect of which is that any funds towards or on account of costs liabilities received by Messrs Withers, his current solicitors, should be split with half being paid over on account of her costs to W's solicitors. This was to meet the situation, which I said I found repugnant, that H should be able with the assistance of relatives and friends (including SK and/or entities with which he is apparently associated) to fund this litigation to the tune of over £1 million so far, whereas W in part as a result of H's non-compliance with orders has been able to pay only £56,000 on account to her own solicitors.
21. Many issues remain unresolved, therefore, but that H has not behaved with total integrity over the time I have spent attempting to case manage the applications and to make appropriate interim orders is, I believe, a conclusion at which a judge can legitimately arrive as a preliminary inference in the course of extensive interlocutory dealings with an application such as I have had. I estimate that I alone have spent at least 15 (mainly full but some partial) court days so far engaged in this case over the period since December 2004.
22. Unsurprisingly there is medical evidence that these proceedings are taking their toll on W's health. So far as H is concerned, his physical and psychological health has undoubtedly been affected by his illness, its treatment, and the side-effects. I say no more about that as his state of health is the subject of a forthcoming application before Baron J to vacate the autumn hearing."
[I interpolate that Baron J refused that application.]
The application for recusal
"… would cause a fair-minded and informed observer to conclude that there is a real possibility that the learned judge was (whether or not consciously) mocking the third respondent for his status as a Sheikh and/or his Saudi nationality and/or his Arab ethnic origins and/or his Muslim faith."
The other two remarks would cause the fair-minded and informed observer to conclude that:
"There is a real possibility that the learned judge had formed a strong view that the first and third respondents were party to an improper combination/campaign not only to put up what the applicant wife says is a false case re: McKellar (the second respondent), but also to defer and in some instances disrupt the proceedings and to subject the applicant wife to maximum delay and expense."
(1) This appears on page 72 of the transcript for 18th September. The others were made on the 22nd."MR Le GRICE [Q.C., counsel then appearing for the Sheikh]: Surely, the right approach to this issue in the event, and it is purely a hypothesis, that the principal argument in support of the wide-ranging effect of the ICSID award was being presented by my client, and he had lost on that issue, it would then be open to the court to give a summary assessment of the costs of that issue, and order payment within 28 days.MR JUSTICE SINGER: And what good would that do her if it turns out that he is not the owner, and/or that I do not think it appropriate to treat him as the beneficial owner, and therefore cast aside for Family Division purposes the cloak of incorporation, and if he chose to depart [on his flying carpet] never to be seen again – [it should be Ramadan quite soon?] the whole point about security for costs … is that the money is up front."
(2) This appears on page 62 of the transcript:"MR Le GRICE: … Mr Pointer (counsel for the husband) seeks one form of order with regard to the ICSID award and Mr Cayford seeks another sort of order, but both are seeking an order with regard to the ICSID awards, not like a classic plaintiff and defendant …MR JUSTICE SINGER: But you want to come into this, or you might want to come into this, and you reserve your position, in certain circumstances you might come in to it if Mr Pointer does not ahead and I suppose it is possible if Mr Pointer does not want to go ahead the Sheikh would be here to see that no stone is unturned, [every grain of sand is sifted.]"
(3) Taken from page 73:"MR CAYFORD: That is what the position would have been with effect from his oral evidence as given in court, but he is now resiling from that.JUSTICE MR SINGER: And say what in relation to ICSID in his affidavit?MR CAYFORD: It is not entirely clear. He does not, as I recall …MR JUSTICE SINGER: [A bit gelatinous, is it?]MR CAYFORD: I am sorry?MR JUSTICE SINGER: [A bit like Turkish Delight?]"
(4) During the course of this hearing there were some references to Ramadan. On the first day there was some dispute between counsel as to whether or not they expected the Sheikh to attend to be further cross-examined by Mr Cayford, it now being accepted that he had informed the court that he would not return. There was another reference to Ramadan in the passage I have cited at (1) above. Exception is, however, taken to this passage at page 80:"MR JUSTICE SINGER: I do not know what the lines of communication are to Saudi Arabia, or wherever the Sheikh may be [at this I think relatively fast-free time of the year], do you want five minutes to consider your position?"
(5) The first of the remarks said to throw doubt on the judge's ability to try the issues with an objective judicial mind was this:"MR JUSTICE SINGER: He (the husband) is running a campaign. It is perfectly clear to me, prima facie, I keep having to say that because, of course, I may be persuaded out of the near conviction, that the campaign here is to make sure that she is put at the maximum disadvantage by the non-compliance with orders, even when he is able to deal with every one of his requirements, and it is not fair." (I have added the emphasis to the words in italics.)
(6) The final comment is one made on page 47 where the judge was discussing the imaginative order he eventually made on 1st December 2006 to deal with the husband's contempt through his failures as found by the judge to pay costs and satisfactorily to explain his expenditure of monies drawn from the frozen accounts. For each £1 that he paid to his solicitors for preparation, representation or advice, he had to pay £1 into a joint account in the name of the parties' solicitors to be held to the order of the court but to be paid to the solicitors for the wife at the conclusion of the hearing unless the court then ordered otherwise. This was to ensure that the wife had some cover for future costs. He said:"MR JUSTICE SINGER: Mr Pointer, it is going to be obvious whenever this case is before another court that I have formed a view about this case, not dissimilar from that which Lord Justice Thorpe formed, and maybe I should not ultimately take the final hearing. I do not know. The view I have taken at this stage is that it looks awfully like it is a war of attrition and if there is a way of evening it up then I will do so and if it is necessary to be inventive in order to achieve it I hope I will be able to, because I find it repugnant for reasons I outlined on Friday. Now I have come out in the open about it. My intention is to try and level the playing field and I will try and find a way to deal with it …" (The words in italics are emphasised by me.)
Singer J.'s disposal of the application
"6. … The listing position is such that, as things currently stand, no judge of the Division can be made available to hear this case over the five weeks for which it has with very considerable difficulty been fixed if I am not to do so. I mention this simply as a fact which I must bear in mind, but make it plain that it does not and cannot impact on the merits of SK's recusal application.
7. The first aspiration expressed in SK's summons, that this autumn's listing be released to another Family Division judge, cannot therefore be met by the Clerk of the Rules as matters now stand."
Singer J.'s judgment
"23. … I postulated (upon what is indeed W's case) that H and SK might be in combination not only to put up what W says is a false case re: McKellar, but also to seek to defer and in some instances to disrupt the proceedings and to subject W to maximum delay and expense. As I have already remarked, if she is correct that SK has no interest in McKellar then the assertion that H and SK are in combination would be made out, and from there to the balance of her contentions about their tactics would be but a small step.
24. I believe that an objective fair-minded and informed bystander would not regard it as unrealistic, pre-judgmental or as a sign of apparent bias for a judge to treat such a scenario as one possible feature of the case. To contemplate that possibility and to take such steps as are available to protect the party who would thereby be disadvantaged do not in my judgment legitimately give rise to any reasonable inference of potential bias on the part of the tribunal against either H or SK.
27. In a situation where the escalation of costs is of such critical concern to W and her advisers it is not in my judgment objectively reasonable to conclude that there is a real possibility of bias from the fact that the tribunal is astute to protect and indeed enhance W's ability to recover costs SK might be ordered to pay her.
28. Extracts  above are remarks made in relation to H rather than SK. It must however be the case, as Mr Pointer submitted, that SK could rely on bias if established against H, not least because SK's factual case will depend in part on judicial assessment of H's evidence. But, for the reasons already given, I do not accept that the comments made about what appears to be H's "campaign" and, if established, its repugnance, would be regarded by the informed observer as demonstrating judicial bias, given the circumstances of this case as they stood last September.
29. The reference to "near conviction" does not in my judgment affect that proposition. A person may at an intermediate stage legitimately reach a prima facie view of greater or less strength, which in either event can be dispelled at the final hearing on dispassionate assessment of the evidence then produced.
30. In extract  I said: "Maybe I should not ultimately take the final hearing" in the light of the view I had formed about H's forensic tactics. In [another extract no longer relied on] I acknowledged that expressing that view "may have consequences for the future conduct of the case". I have given careful thought to the effect of these expressions, on both SK and H, not least because it is submitted that once a judge has doubted his suitability to conduct the final hearing of the case it is important for all parties to feel confident that he approaches the task with sufficient impartiality. What I have been critical of has been H's litigation tactics, and the same criticism would be deserved by SK if it proves to be the case that he and H have combined to disadvantage W. But it is entirely possible that a litigant husband, outraged beyond measure, attempts to thwart by tactical means the false and exaggerated case brought by his wife, and that the husband's case on the facts proves to be accurate. I would expect an informed observer to understand that distinction, and to have confidence in the tribunal's ability to conduct an impartial inquiry and to arrive at an unbiased conclusion at trial, while meanwhile attempting to maintain between the parties as level a playing field as possible in the circumstances."
"31. Complaint is raised about certain references to Ramadan, when its onset is fixed in different parts of the Muslim world, and when it might fall in 2007. I certainly intended no disrespect or disregard for the tenets of Islam …
32. References to flying carpets, grains of sand and Turkish Delight cannot in my judgment, whether in isolation or in combination with any of the other passages relied upon, give rise in the fair-minded and informed observer to a real possibility of bias. Mr Cayford in his submissions referred to these examples of "colourful language", which I accept. I do not accept that they demonstrate disrespect or disregard for SK's Saudi nationality and Arab ethnicity.
35. I arrive therefore at the conclusion that there is no real as opposed to fanciful doubt about my impartiality which should be resolved by recusing myself. This summons therefore fails, and I will not rule myself out from further participation in this case, including at the final hearing (whether or not this autumn) if I am available to take it."
"… the fundamental importance of the convention right to an independent and impartial tribunal. These two concepts are closely linked, and the appearance of independence and impartiality is just as important as the question whether these qualities exist in fact. Justice must not only be done, it must be seen to be done."
"Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 200 CLR 488, 509, at para 53, by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious"."
Finally I draw attention to the endorsement by this Court in paragraph 21 of Locabail of the observations of the constitutional court of South Africa in President of the Republic of South Africa v South African Rugby Football Union (1999) 4 S.A. 147, 177:
"It follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or pre-dispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."
Lord Justice Mummery:
Lord Justice Wilson: