A case when a Judge is not allowed to have continuing involvement (Shokrollah-Babaee v Shokrollah-Babaee) [2019] EWHC 2135 (Fam)

A Judge may not be allowed to deal with the case if they have dealt with the case before.

This situation happened in financial remedy proceedings where the case had progressed from the financial dispute resolution appointment to a final hearing and there were additional points for the Court to consider. Can the Judge who was present at the financial dispute resolution hearing still be disqualified from considering those points? This was the question that needed to be determined in the recent High Court case Shokrollah-Babaee v Shokrollah-Babaee.
The facts
The background facts of this case are that the parties had been married (or lived together) for some twenty-five years and had three children who were now adults. The marriage ended, divorce proceedings were issued and there were also financial remedy proceedings. The wife and husband had at least 15 hearings and spent over £2.2 million on costs.
A final order was made in March 2019 which required the husband to pay the wife periodical payments of £10,000 per calendar month. Arrears soon built up.
There were a series of cross applications made. An application was made to Court by the wife for a judgement summons, an order for the husband’s passport, works of art to be handed over, expensive vehicles and their personalised number plates and in addition for the sale of two French properties that were in the early stage of being redeveloped.
In response the husband asked the Court for a variation downwards of the periodical payments and for the variation of certain provisions for the two French properties. The husband wanted to stop an early sale of the French properties as he wanted further amounts to be put into the redevelopment that would allow the properties to be sold for a bigger profit that would then allow the husband to pay the sum due to the wife.
A directions hearing was listed in July 2019 and the cross-applications were to be heard by Holman J. It was not picked up that Holman J was the Judge for the financial dispute resolution hearing in December 2017. The hearing started with Holman J dealing with representations and then the wife gave her oral evidence. When the husband had his examination in chief the husband noted in a response to a judicial comment that Holman J was the Judge who conducted the financial dispute resolution hearing. The Judge then stopped the hearing.

The rules state that ‘’The Judge hearing the financial dispute resolution appointment must have no further involvement with the application, other than to conduct any further financial dispute resolution appointment or to make a consent order or a further directions order.’’
It is important to note the word ‘must.’ Does this rule apply only to cover the financial application until the final hearing, or is everything covered until the financial application is finished?
Holman J determined that the effect of the rule was that he could not be involved in any further part of the proceedings, even if the husband and wife sought for the rule to not apply. The hearing before Holman J could not continue and a new judge would need to be allocated to hear the case.
There would be no flexibility or softening the edges in terms of the Family Procedure Rules.
For this area of law to develop it must be left to the Court of Appeal to determine.
If the Judge at the financial dispute resolution hearing indicated an outcome with what the client is seeking the client may wish for the Judge to stay on at the final hearing as a new Judge may not adopt the same approach when a final order is made. At present this does not happen.
It could also go the other way if the client does not like the indication given by the financial dispute resolution Judge then the client may hope the new Judge at a final hearing adopts a very different approach.
If the Judge at the financial dispute resolution hearing does not give a good indication of the outcome of the case at the financial dispute resolution hearing then you may think the new Judge at the final hearing may adopt the same approach so it may encourage the clients to resolve matters before the final hearing takes place.
For now there will be a new Judge at the final hearing from the financial dispute resolution hearing.
It is a shame that this case had so many hearings and several million spent on legal fees. Most of my work now is Family Mediation based which can be a quicker and more cost effective process than going to Court. I work with clients who look to settle financial matters before a final hearing takes place. This case may not have been appropriate for Family Mediation due to the number of hearings that took place but for clients who are able to see the perspective of the other client and are willing to compromise even in high conflict situations it is possible to reach a fair and balanced outcome that is shaped by the clients rather than a Judge making an order.

Austin Chessell, Collaborative Family Solicitor and Accredited Family Mediator at London Family Solicitor
ac@london-family-solicitor.co.uk

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