In this series of podcasts by Brodies' Advocacy we look at some common – and sometimes controversial – issues that arise for clients and lawyers who are involved in disputes before the courts and tribunals and how those can be managed. In this first episode in the series we ask "What do I do if…..I think our judge is biased?"
It is not uncommon for clients, and indeed lawyers, to emerge from court and tribunal hearings with a sense (and sometimes a strong sense) that the judge or decision-maker isn't "with them". The judge seems unimpressed with the legal arguments that are being made or has made comments that suggest that they have struggled to understand or to believe a witness. That is a normal and unavoidable part of the experience of litigation – and guessing how the judge is taking to the case is a good way of passing the time during interruptions or scheduled breaks in the hearing.
Sometimes, though, concerns emerge that the client may be disadvantaged by something going beyond the normal cut and thrust of a dispute – by a lack of independence or impartiality on the part of the judge. The concepts of independence and impartiality are a crucial aspect of our legal system and of the rule of law. They are founded in the philosophy that parties should be judged by decision-makers who have no personal interest in the outcome of the case or prejudices that might make it difficult or impossible to afford a party a fair hearing. As well as putting in place a range of measures to protect the independence of judges from political pressure by governments and parliaments, our legal system also recognises that judges should be disqualified from deciding cases where they are actually biased and where, looking at matters in the round, a reasonable person would worry that there is a real possibility of bias. Actual bias will exist where, for example, a judge would obtain a direct financial benefit or disadvantage from the outcome of a case. "Apparent bias" can arise where the judge has a family or close personal connection with one of the parties or has expressed views publicly in the past that suggest that they may not be sympathetic to the client's case.
Deciding to challenge a judge on the grounds of bias is a complex and sensitive task. It is also an area in which lawyers may often find it difficult to persuade their client not to bring a challenge – either because they do not think it will succeed or there are other potential disadvantages in doing so. Even a successful bias challenge can have downsides – with the potential for a case having to be re-run before a new decision-maker and the costs and inconvenience that can bring.
Brodies' advocacy specialists Christine O'Neill KC and Brian Campbell (who as a part-time Employment Judge sees this issue through a number of different lenses) explain the law relating to bias and the practical issues that need to be navigated if an objection based on bias is to be taken and is to succeed.