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22 November 2019

If you want a different answer, ask a different judge

The common cry from a losing team at a sports event is ‘we were robbed’. No-one likes losing, least of all in court proceedings, and if you have had a tough time during a court hearing, you might think that the judge was unfair or biased against you. Someone going through court proceedings without the benefit of legal advice and representation may particularly form this view.

Before taking up a judicial role, a judge will have the benefit of their legal training and career experience behind them. Additionally, a judge undergoes specialist training both before taking up office and during it, enabling them to uphold the rule of law and deliver justice efficiently and perhaps most importantly, impartially.

Judges manage a case through the court process to ensure that it is progressed expeditiously, justly and at a proportionate cost, ensuring that an appropriate share of the court’s (limited) resources is given to each case. Despite all of this, judges remain human and their patience can be tested. For example, when there is an untoward delay in progressing a case and consequently valuable court time is lost, when a party is unprepared for the court appearance, or persistent in putting forward unsustainable arguments.

An unexpected outcome of a court case can be challenged if a judge has appeared biased or if there has been actual unfairness in the court process. A real possibility of bias will exist if a fair-minded and informed observer would conclude so. Unfairness will exist if the process that led to the judgment being challenged was so unfair that its outcome should be rendered void.

This may occur if a judge has, for example:

  • made frequent or improper interventions when one side is putting forward its case;
  • not appeared to have listened or accepted arguments or explanations put forward by one side;
  • made robust case management decisions; and
  • come from the same set of barristers as the barrister for the opponent.

A party who has the benefit of legal representation can rely on being told by his lawyers whether or not there has been true judicial bias or unfairness. The judiciary and those appearing before them take great pains to avoid judicial bias or unfairness and true instances remain very rare. For example, a barrister from the same set of barristers as the judge may ask for the case to be dealt with by a different judge, or the judge may decide that he needs to excuse himself from it. Alternatively the barrister and judge may ensure that the ’relationship’ or potential conflict of interest is brought to the attention of the other party. It would be unusual if the other side didn’t accept that the high ethical standards that barristers, solicitors and judges work under are sufficient to prevent judicial bias and unfairness.

An appeal against the unfair decision can be made. For example, the complainer can ask for the trial judgment to be set aside and for a new trial before a different judge to be held. In deciding whether there should be a fresh trial, the appeal court will take into account that the judge is entitled to a wide degree of latitude as to how he conducts proceedings in his court, but the over-arching principle is that cases must be dealt with justly.

To sum up, justice must not only be fair, but also be seen to be fair.

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