When does a judge go too far?
Can a judge say anything he wants about the claimant and defendant in a case before him? According to the Court of Appeal in the case of El Farargy v El Farargy there must be a limit to the colourful and jocular comments of a judge.
In this case, a rich Egyptian and Muslim husband, had, on several occasions, defied the court’s orders to the potential detriment of his former wife. The judge in question, Singer J., expressed a number of comments which demonstrated that he had formed a negative and accusatory view of the husband during the interlocutory hearings. According to the Court of Appeal, Singer J should have refused to take the case at the final hearing due to his bias. The Court of Appeal decided that there was “a real possibility that the judge would carry into his judgment the scorn and contempt the words had conveyed.”
One of the interesting facts in the case is that Ward LJ, one of the three Court of Appeal judges, set forth in a postscript, his own critic of the recusal system. He states that it is regrettable that so many recusal applications are being made, although it is right that they should be filed. A recusal system is necessary in order to ensure fair and impartial judges . He proposes that in order to handle the applications in a better way, parties who wish to complain should do so informally at first and, where practical, another judge should hear the application. These may seem like sound proposals, but at closer glance, the idea of an informal approach would limit the transparency of the judicial process even more, harming the purpose of the administration of justice which should, according to Lord Hewart CJ, “not only be done, but must be seen to be done.” Internal decisions made between the judge and parties will not improve the handling of judges’ bias and should not take place. Having the application informally heard by a colleague is not the answer either. Again, the lack of formal rules and procedures will only harm transparency even more. Lastly, as a practical point, the introduction of an informal system could cause chaotic disruption to the actual trial.