Wednesday, 7 September 2016

GETTING RID OF THE JUDGE

You can't pick the judge you want to try your case. But can you get rid of them on the basis that they are biased against you? It's notoriously difficult to show that a judge is actually biased and few people try that one. The more common route to getting the judge to stand down and hand over to another judge is to say that there is an appearance of bias: that it stinks a bit and that a fair-minded and informed observer would reckon there was a real danger or possibility of bias.

The mere fact that the judge has previously ruled against you before or been critical of you is unlikely to be enough to warrant them standing down. It's a question of degree. If in the previous case they had decided that anyone with the intelligence of a flea would have realised you were an inveterate liar and had never said anything truthful apart from giving the correct number on your Lottery ticket when claiming £20m, that might be sufficient. Similarly, if the judge was premature in indicating to you he had decided you did have a hope in hell of winning the case, that also would probably be enough.

In a case just before the High Court the judge had decided against the claimants on two sets of issues because he regarded their evidence as unreliable. But there were some more issues to be dealt with. Fearing that the third set of issues would go the same way as the first and second, the claimants asked the judge to step aside. He refused and so the claimants appealed. They failed. There was nothing to indicate he had closed his mind to what the claimants wanted to say on the outstanding issues and there was no appearance of bias.

Before you try and replace your judge, just remember this. You will be asking that very judge to go and, if he stays, that's who you will be facing for the rest of the case!