The judge in the middle of the court battle over Baron Hans Heinrich Thyssen-Bornemisza’s £1.2bn fortune is believed to have set a historic precedent when he tried to clinch a deal that could have given him a financial interest in the case (The Lawyer, 2 April).
Defence lawyers invited Mr Justice Mitchell to stand down as a result of his request for a $100,000 (£70,000) compensation fee if the case settles before 31 December 2001, a move which raised potential financial conflict. The request took place several days before Judge Mitchell voluntarily withdrew.
An 1852 ruling by then Lord Chancellor Lord Cottenham outlines that judges with the slightest suspicion of being in a position of conflict should withdraw immediately.
Open University law academic Dr Gary Slapper says: “Judges must not participate in any case in which they have an interest. If a judge creates a financial interest in a case then, although this case might be argued as ‘safe’ provided the judge does not stand to gain more if one side rather than another wins, it is arguably an undesirable practice if extra money is payable to a judge dependable upon some contingency.
“There will always be the appearance, whether a case has been settled or withdrawn, that it might have been improperly procured or facilitated by the judge.”
He adds: “I dare say that the judge in this case is very honest, but the precedent seems to be a very dangerous one.”
Judge Mitchell voluntarily stepped down after the Bermudian authorities rejected his demands for more money and perks in his contract renewal application. The controversy left the parties involved at risk of losing tens of millions of dollars and the case restarting after 106 days in court.
One source says: “It is quite astonishing that a judge could seek a payoff to be made to him if the case is settled. A judge should not have any interest in the way the case is fought. There is a huge amount of money being wasted as a result of what has happened.”
The defence lawyers also thought there was no point in him continuing as judge because his contract renewal application had been rejected and he had no intention of staying after his existing contract ran out in November 2001.
The senior source also points out that Judge Mitchell never made it clear that he was happy to stay with the case if he got more money.