Appeal Court warns against judges praising party litigants’ opponents to avoid ‘perception of bias’

Lord Carloway
Lord Carloway
Judges should refrain from praising legal practitioners in their judgments in order to avoid any perception of bias, particularly in cases involving party litigants, the head of the Scottish judiciary has said.
In a postscript to a decision of the Inner House of the Court of Session in which the court allowed an appeal by Brian Philp in his action against the Highland Council, the Lord President, Lord Carloway rejected an allegation by the pursuer that the Lord Ordinary had shown “unconscious bias” in her opinion dismissing the action as “irrelevant”, but stated that the court was not surprised that the pursuer “took umbrage at the imbalance of comment and criticism”.
Any such compliments, while they can be “deserved morale boost” for the lawyer concerned, should be confined to “rare and exceptional” cases, he added.
The court allowed Mr Philp’s appeal in part after ruling that although his pleadings were “prolix” and that there was an “absence of clarity” as to the legal basis of the action, his case was not “bound to fail” and his averments were “sufficient” to merit a proof.
‘Them and us’
The Lord President, sitting with Lord Menzies and Lord Brodie, noted that the Lord Ordinary’s opinion had made reference to the defenders “helpfully” lodging a note of argument “well in advance of” the debate; had referred to the pursuer’s pleadings as “prolix”; and to the defenders’ counsel’s submissions as being presented with “commendable economy”. 
Subject to certain limited comments, she stated that she accepted “all of the defenders’ legal propositions as well founded in law” before proceeding to apply them; and later referred to the defenders’ criticisms of the pursuer’s case as well made or “well-founded” and often referred to agreeing with what the defenders’ counsel had said.
The pursuer maintained that the Lord Ordinary had been “unconsciously biased” and had made “material factual errors”.  
On bias, he commented that the learning of the Lord Ordinary and counsel for the defenders had been in contrast to his own lack of education and thus there was a “them and us” situation.  
The Lord Ordinary had demonstrated a tendency to take at face value everything presented to her by the defenders and to take what the pursuer had said “with a pinch of salt”.  
She had complimented the defenders for “helpfully” lodging a note of argument, whilst criticising the pleadings of the pursuer as being “prolix”, because the total length of the record extended to 35 pages.   
Perception of balance
The judges did not consider that there was any substance in the allegation of “subconscious bias”, but observed that the pursuer’s criticism did highlight the need for the courts to be “circumspect” when complimenting legal practitioners for their assistance to the court or diligence in preparation, especially in cases involving party litigants.
Delivering the opinion of the court, the Lord President said: “Praise from the Bench, when merited, can be a deserved morale boost to the practitioner concerned. There is a place for it within the wider legal system. Whether, and to what degree, it should find its way into a judicial opinion is a more delicate question.  
“Because of the potential effect it may have on the perception of the, often unsuccessful, opposition, especially when that party’s forensic efforts have been met with opprobrium, it should certainly not feature as a matter of routine. 
“It may be best to confine it to rare and exceptional cases. It may also assist the perception of balance if a judge, rather than avowing a wholesale acceptance of one party’s submissions, simply stated, in his or her own words, what propositions and criticisms are well founded. 
“In short, the court is not surprised that the pursuer took umbrage at the imbalance of compliment and criticism, even if the well-informed observer would not have done so.”

© Scottish Legal News Ltd 2020

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