Judicial Recusal And School Friendship

“… the suggestion that I would somehow prefer to make a wrong decision in order to avoid presiding over the cross-examination of someone I last saw in the early 1970s at school, when we were both schoolboys, and whom I have not seen since, is not only untrue, but frankly ridiculous.”

The case of Brake & Ors v Swift & Anor [2020] EWHC 1156 (Ch) involved a recusal application.

This post is only considering what the judge said about a former friendship with a school friend, Dr Geoffrey Guy, whose investment vehicle was the second respondent in the proceedings.

The judge considered this issue to be a central feature of the recusal application.

The judge disclosed the school friend position to the parties. The judge and Dr Guy had not seen one another for over 40 years as their paths diverged. The judge said he had had no contact with Dr Guy since leaving school in the 1970s. The application for recusal was dismissed.

The following is an extract from the judgment:

Nor is it correct to argue that I relied on these concepts in order to avoid “having to try the question whether Dr Guy was guilty of Unlawful Conduct”. This is an underlying argument in Mr Davies QC’s skeleton argument, though so far as I can see it does not find any place in Mr Smith’s witness statement. It is based on the fact that, as discussed earlier in this judgment, and as disclosed in July 2019, I went to school with Dr Guy in the late 1960s, although I have had no contact with him since the early 1970s. Mr Davies QC put it this way in his skeleton argument:

“12. Crucially, the Declaration Application was expressly made on the footing that, if it was not granted, Chedington would have to call Dr Guy as a witness. The choice provided to the Judge was: do not try the pleaded case or we will have to call Dr Guy. At that stage, there was no witness statement from Dr Guy and Chedington made it clear that it was not intended to call Dr Guy. Chedington was even going to call the Trustee – ie Dr Guy’s collaborator in the alleged Unlawful Conduct. But there was no intention to call Dr Guy unless the Declaration Application was dismissed. And so the Judge was faced, in reality, with the decision whether or not to preside over a trial in which his former school friend (who is a party in all but name) would be cross-examined on the basis that he had participated in and/or had notice of the Unlawful Conduct.”

I record, simply in order to avoid its being said I have not done so, that the suggestion that I would somehow prefer to make a wrong decision in order to avoid presiding over the cross-examination of someone I last saw in the early 1970s at school, when we were both schoolboys, and whom I have not seen since, is not only untrue, but frankly ridiculous. I have no idea what sort of man Dr Guy has turned out to be. I do not even know what he looks like now. Since the Brakes do not suggest that I was actuated by actual bias, I therefore understand the argument to be that in these circumstances the fair-minded and informed observer would nevertheless conclude that, objectively viewed, in the circumstances there was a real danger of bias. As I said in Kimyani,

“51. [ … ] the hypothetical informed and fair-minded observer knows all the relevant facts, whether publicly available or not, and has a perception of the case which is not that of the litigant, but is instead more objective and dispassionate.”

In my judgment, that hypothetical informed and fair-minded observer could not possibly think that there was any real possibility of bias in that situation.

In any event, even if I were wrong about that, to the extent that such an observer would conclude that there was a real possibility of bias because of my school friendship with Dr Guy more than 45 years before, this was disclosed and no objection was taken, both initially and then even once it was clear that I was to try the Bankruptcy Application. Accordingly, the Brakes have waived this objection.

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