Do friendships affect the impartiality of judges? (from Solicitors Journal)

Family Law|November 17th 2015

Fairness is a vital component to an effective legal system. People go through the courts with the expectation that their case will be assessed with fairness. But what happens if a client has doubts? Should a judge, for example, socialise with lawyers appearing before them?

Recently, the High Court heard Welch v Welch – a complex financial dispute between an ex-husband and wife. In this case, the wife applied for the judge to recuse himself from the case. She claimed that he and her husband’s counsel “had some sort of familiarity with each other, and specifically that they had both spoken together at some seminar a few months earlier”.

The case reminded me of an experience in London. I accompanied a client to court and everything proceeded as expected during the morning. However, on Fleet Street after lunch, we both saw the judge and our opposing QC walking back to court together, laughing and joking, clearly very familiar with each other. Needless to say, she was horrified and it took a lot of hard work to calm her down. I wasn’t happy either.  I thought it demonstrated that the judge, whose impartiality I had no reason to question, had not the slightest idea that this public familiarity could so easily be misconstrued.

Both of these cases demonstrate the subtleties of legal roles and relationships that can develop between judges and the Bar. My client firmly believed what she saw was evidence that she would not get a fair hearing until she was proved wrong. Ms Welch seems to have had a similar belief.

Although judges traditionally steer clear of solicitors, judges and barristers do socialise. Contrary to what Lord Sumption said recently, I do believe in the existence of the “Old Boys network”. Judges do tend to come from similar backgrounds and from the same London Chambers as other legal professionals. Should they be expected to discard long friendships when elevated upwards? They won’t, of course. However, in the same way they maintain independence when opposing counsel from the same chambers or even the same room, and in the same way they are traditionally wary of solicitors, judges should publicly keep a respectful distance from former colleagues.

The legal profession is a customer-facing one. There are obligations to the end user and overly familiar social interaction can be deeply troubling to a client.

Mr Justice Holman made the point in Welch v Welch that if a judge had to recuse himself from a case every time he “had some passing encounter, social or otherwise, with a specialist barrister in a specialist field … there would be few cases that could be effectively heard”. True. But I’m afraid as my client and I both witnessed, a passing encounter is not always the case.

This article was first published by Solicitors Journal, and is reproduced by kind permission.

Photo by Nicola Corboy via Flickr

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