ALLEGATIONS OF JUDICIAL BIAS AND THE INFORMED OBSERVER TEST: THE LAW AND PRACTICE

In Kimyani -v- Sandhu [2017] EWHC 151 (Ch) Master Matthews dealt with the difficult issue of a litigant alleging judicial bias. This judgment emphasises the fact that the test is one of the fair minded and informed observer and not that of the litigant in question. “There is something rather unreal about asking a judge…

“But the second rule goes wider. It extends beyond cases where the judge has a personal interest to cases of bias. As the Court of Appeal once put it,

“Bias is an attitude of mind that prevents the judge from making an objective determination of the issues that he [or she] has to resolve”: Re Medicaments and Related Classes of Goods (No 2) [2001] ICR 564, [37].
The law distinguishes actual bias from apparent bias. The former is subjective, and deals with the judge’s state of mind, while the latter is objective, and deals with the judge’s conduct and the surrounding circumstances. Where a judge is actually biased in a decision, then justice has not been done. Where a decision is tainted by apparent bias, then justice is not seen to be done. Cases holding that there has been actual bias employed by a judge are rare. Most cases dealing with bias are argued and decided on the basis of apparent bias.

via ALLEGATIONS OF JUDICIAL BIAS AND THE INFORMED OBSERVER TEST: THE LAW AND PRACTICE — Civil Litigation Brief

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