Go easy on praising advocates in your rulings, judges told

Carloway: A place for praise within the wider legal system

The head of Scotland’s judiciary has cautioned judges to be “circumspect” when praising the advocates before them for fear of giving the impression of bias, particularly where litigants in person are involved.

Lord Carloway, the Lord President of the Court of Session, suggested that judges reserve such praise to “rare and exceptional cases”.

In the first instance ruling of Brian Philp against The Highland Council [2018] ScotCS CSIH53, the Lord Ordinary (the equivalent of a High Court judge) referred to the defendants “helpfully” lodging a note of argument “well in advance of” the debate, while describing the claimant litigant in person’s pleadings as prolix.

She also praised the defendant’s counsel’s submissions as being presented with “commendable economy”.

Subject to certain limited comments, she stated that she accepted all of the defendant’s legal propositions as “well founded in law” before proceeding to apply them.

She later referred to the defendant’s criticisms of the claimant’s case as well made or well founded, and often referred to agreeing with what the defendant’s counsel had said.

As part of his appeal, the claimant suggested that the judge had shown subconscious bias towards the defendant, arguing that the judge tended take at face value everything presented to her by the defendants and to take what he had said with a pinch of salt.

Lord Carloway said: “It was explained to [him] at the hearing of the [appeal] that this ground of challenge would have little practical consequence, since the court would judge the relevancy of his pleadings on their merits, independent of the Lord Ordinary’s thinking.”

He said that, while he considered there was no substance to the allegation – there were “valid criticisms” to be made of the claimant’s pleadings – his criticisms did highlight the need for courts to be “circumspect”, especially in cases involving litigants in person, “when complimenting legal practitioners, their assistance to the court or diligence in preparation”.

Lord Carloway 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 [claimant] took umbrage at the imbalance of compliment and criticism, even if the well-informed observer would not have done so.”

    Readers Comments

  • And – you might have added – the Court allowed Mr Philp’s reclaiming motion “in large part” and recalled the Lord Ordinary’s interlocutor.

  • John Brick says:

    Does the practice of allowing a represented defendant, to present their case – ahead of a LIP claimant – in a hearing, reflect a bias in court?

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