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18th December, 2020

Seen to be done – cases of apparent judicial bias

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We are truly fortunate in this country to have a judiciary that is virtually incorruptible.

That is not the case in all jurisdictions around the world, far from it. In all my years as a litigator, having appeared both as instructing solicitor and advocate in trials and preliminary hearing throughout the land, I am yet to encounter a judge that I did not believe was doing their utmost to dispense justice.

Of course, the concept of justice is not as straight forward as children’s fairy tales would have us all believe. At most trials, there is one winner and one loser. Almost invariably the winner believes that justice has been done and the loser believes that justice has not been done. That is something of a feature of an adversarial system.

That which fundamentally underpins the working of such a system is the concept of justice not only being done but crucially, it being seen to be done. That is to say that dispensing unbiased decisions of itself is insufficient. Even if acting in an unbiased manner, a judge must always ensure that their appearance to the parties involved is one of neutrality.

If a judge gives the appearance of bias towards either party, even if there is no evidence of actual bias, the appearance alone of bias is enough to have an appeal court interfere with that decision either to overturn it if appropriate or to order a retrial.

In the relatively recent case of James Dorman, Caroline Dorman, Kirsty Clode, Andrew Turton v Clinton Devon Farms Partnership [2019] EWHC 2988 (QB), 2019 WL 05864639, a brief review of the law is set out which in turn is taken from a more comprehensive review of the case-law set out by Fraser J in Alan Bates v Post Office Limited [2019] EWHC 871 (QB).

The basic test as regards apparent bias is whether: “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

In Otkritie International Investment Management Ltd and others v Urumov [2014] EWCA Civ 1315, Longmore LJ explained: “It is an even more fundamental principle that a judge should not try a case if he is actually biased against one of the parties. The concept of bias includes any personal interest in the case or friendship with the participants, but extends further to any real possibility that a judge would approach a case with a closed mind or, indeed, with anything other than an objective view; a real possibility in other words that he might in some way have ‘pre-judged’ the case.”

Case law on this matter makes it clear that the fair-minded observer is not unduly sensitive or suspicious, but that where there are real grounds for doubt as to a lack of bias, the doubt must be resolved in favour of recusal. That is to say that a judge should refuse to hear a case if there is any real doubt as to a lack of bias on the judge’s part.

The incorruptibility and neutrality of our judiciary is that which makes it the jurisdiction of choice for so many companies and people around the world.

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