Judicial Conduct and the Fairness of Trials - The Supreme Court in Serafin
- Ryan Murphy
- Jun 3, 2020
- 21 min read
This particular post looks at the Supreme Court’s judgment in Serafin v Malkiewicz [2020] UKSC 23 and the approach taken in the lower courts. The post is not about the substantive legal issue in the case, which concerned liability for and interpretation of defences to a claim of defamation in the High Court. There is an excellent post here that deals with the substantive issues as heard in the Court of Appeal. This post addresses the behaviour of the first instance judge (described in the section below on the judgment of the Court of Appeal). The appeal to the Supreme Court related not only to interpretation of the point of law in question but also to whether the Court of Appeal was correct in finding that the conduct of the judge was such to render the trial unfair.
The proceedings in the High Court
In the High Court - Serafin v Malkiewicz [2017] EWHC 2992 (QB) – the case concerned only the claims in defamation. The facts are briefly stated to give some context to the discussion that follows. There were a number of allegations of defamation made by Jan Serafin against journalists and publishers of a Polish-language magazine (Nowy Czas) for an article published in 2014. The defendants contested the allegations and also put forward a number of defences – including the defence of ‘truth’, of ‘honest opinion’ and of ‘public interest’ – under the Defamation Act 2013. At trial Mr Serafin was unrepresented but he had received some pre-trial legal support, including with disclosure of documents.
The judge upheld that the allegations were defamatory but also that the ‘public interest’ defence in s 4 of the Defamation Act 2013 was made out on all allegations. Some of the allegations were also covered by other defences but by holding that the s4 defence was made out, Mr Serafin was unsuccessful in his claim and judgment was in favour of the defendants.
During the course of the judgment, the judge spent a fair amount of time dealing with the credibility of Mr Serafin (at [86]-[131]) and his witnesses. A flavour of which can be found in the following passage:
“The Claimant did not impress me when he was giving evidence.” (at [89])
With an artistic flourish the judge also paints the following possible interpretation of Mr Serafin’s character:
“A latter-day Don Juan figure who is only out for himself, and pursues his business and personal goals with a combination of tenacity and deceit… – is fundamentally untrustworthy.” (at [91])
What we do not see in the judgment is much evidence about how the trial was conducted. There are hints that proceedings were far from straightforward. The judge admits that this was:
“a difficult trial to conduct” (at [7])
And that litigation should:
“not be initiated out of almost unbounded self-confidence and lack of judgment, coupled with a misplaced belief that the court will surely succumb to the same charm and eloquence that has worked so effectively in the world outside.” (at [354])
It took Mr Serafin appealing against the decision of the High Court for the full picture of judicial conduct to come to light.
In the Court of Appeal
Mr Serafin appealed against the decision of the High Court on five grounds. The Court of Appeal – Serfain v Malkiewicz [2019] EWCA Civ 852 – gave judgment in March 2019. The first 4 grounds related to the substantive legal issues of the defamation claim. For the sake of completeness, it is worth noting that the Court of Appeal upheld these grounds.
For the purposes of this post, it is the fifth ground of appeal that is of greatest relevance. It was worded in this way:
“Ground 5: Unfair judicial treatment: During the trial, the Judge showed hostility and rudeness to the Claimant, an unrepresented party. He made frequent gratuitous interjections during the trial, hostile to the Claimant, putting the Claimant under enormous pressure and making it extremely difficult for him to conduct the litigation. He also prejudged matters against the Claimant (for example making it clear early in the trial that he regarded him as a "liar" who had behaved "deplorably" and threatened that he would say so in his judgment)…In consequent of the above, the trial process was either unfair and/or conducted with the appearance of unfairness, and the Judge's findings are not safe or reliable.” (at [29] my emphasis)
In summary the ground for appeal was that the judge’s conduct during the trial was such to render it unfair or, at the least, to give the appearance that it was unfair. The Court of Appeal dealt with this ground in paragraphs 103-119 of its judgment.
To begin at the end, the Court of Appeal agreed with Mr Serafin that the judge had acted in such a way so as to bring the fairness of the trial into question and so allowed the appeal on this ground also. In the words of the Court of Appeal:
“the Judge not only seriously transgressed the core principle that a judge remains neutral during the evidence, but he also acted in a manner which was, at times, manifestly unfair and hostile to the Claimant.” (at [119])
And so what happened to get to a position where judicial conduct rendered a trial, in the view of the Court of Appeal, to be unfair?
Legal principle - fairness
Underpinning the judgment of the Court of Appeal on the fifth ground is a simple notion of fairness. Trials should be conducted fairly. The court deals with the underlying principle of law in five short paragraphs. It describes the principle as a “fundamental tenet” of the legal system (at [108]). Indeed, the right to a fair trial is a fundamental human right enshrined in Article 6 of the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998. This extends beyond actual fairness and also includes perceptions of fairness.
Judges are the referee of the proceedings. They are there to ensure that each party presents its case within the rules governing process and evidence. The Court of Appeal noted, relying on established authority, that judges can ask questions to clarify uncertainties but should not take on the part of an advocate. To do so is to become an advocate and: “…descend into the arena” (at [110] citing Lord Parker in R v Hamilton (unreported, 9 June 1969)).
Finally, the Court of Appeal made clear that ‘correctness’ of a decision is not the only yardstick for measuring whether a trial has been conducted fairly. Citing a judgment of the Privy Council – Michel v The Queen [2009] UKPC 41 – the court made clear that the question of the impact of the conduct of a judge on the fairness of a trial was one of degree. That is to say that that not all poor conduct will render a trial unfair:
“by no means all departures from good practice render a trial unfair.... Ultimately the question is one of degree.” (at [111] citing Michel v The Queen at [28])
The importance of this principle was underscored by the Court of Appeal, through further citation of Lord Brown in Michel, by stating that:
“The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.” (at [111] citing Michel v The Queen at [31])
The Court of Appeal was therefore faced with a question as to whether the behaviour of the judge in the High Court was such to infringe this right to a fair trial.
Judicial conduct in the case
The Court of Appeal had before it extracts of the transcript of the trial – some of which were reproduced in Appendix C to the judgment (itself taken from the skeleton argument of the claimant) - and considered a range of incidents that happened throughout the conduct of the hearing. The following are examples of the sorts of interventions made by the judge in the trial (not all of which were cited directly in the judgment) but the emphasis by underlining demonstrates that they were taken into account by the Court of Appeal.
When the Claimant was being cross-examined: “J: There is always a lack of clarity with your evidence which I am finding irritating.” (para 56 of Annex C)
Again, when the Claimant was being cross-examined: “J: This does not look great, frankly, because either you were lying to the investors, or you are lying to me. If you are lying to me, the consequences can be really awful, because you understand, I do not like being lied to. Which is it? Who were lying to?” (para 61 of Annex C)
Again, when the Claimant was being cross-examined: “J: He is either being obtuse, or he is playing for time, and I cannot decide which.” (noted by the Court of Appeal at [115])
Again, when the Claimant was being cross-examined: “J: You do not understand what counsel is saying. To put it bluntly, he is saying there were two versions of this email. … That is what is being put, that you have deliberately put words in her mouth – Claimant: I think I – J: - and therefore, have lied. Well, did you or did you not? Claimant: I didn't. I – J: Well, how can you explain what is in the bundle, which does not seem to be the version which was sent? (noted by the Court of Appeal at [116])
When the Claimant could not readily find documents: “Well, it should not take you a second. It should take you a nanosecond, because it is obvious that this point would be raised. Where are the documents? In the bundle? J: A bunch of assertions is not going to cut any ice. I need proof. Strictly speaking, the burden of proof is on the defendant to prove that under the Defamation Act, but it is not going to work like that in the sense that I will draw inferences. So, you can get it over lunch.” (para 58 of Annex C)
When the Claimant was cross-examining a witness: “J: Complete waste of time suing you…You seem pretty craven about that. I think you need to get on with this because you are just making it worse, okay?...J: Just speed up and come to a conclusion. It is not the best part of your case….It was deplorable behaviour and I am going to say so in my judgment…J: Well, are you going to stop asking questions or not?” (para 68 of Annex C)
These are, of course, just examples, taken somewhat out of the context of the proceedings (a point argued in the Supreme Court). The Court of Appeal noted from the outset that the judge’s interventions were ‘highly unusual and troubling’ (at [114]). It formed this view on the basis that the judge had intervened too fully and had, on the one hand:
“descended to the arena, cast off the mantle of impartiality and taken up the cudgels of cross-examination” (at [114])
And, on the other:
“used language which was threatening, overbearing and, frankly, bullying” (at [114])
The court also noted, with surprise, that the conduct had occurred in a trial involving a litigant in person whose first language was not English (at [117]). Finally, the Court of Appeal was concerned that the judge’s demands for disclosure of documentation, and criticism of current disclosure, went beyond what had been requested by the defendants and that disclosure had happened at a time when Mr Serafin was represented (at [119]).
In sum, the Court of Appeal was left with the impression that the judge had taken against or developed an “animus” towards Mr Serafin (at [114]).
Comment on the judgment of the Court of Appeal
The Court of Appeal certainly dealt with the ‘fairness’ ground of appeal in a succinct manner. Despite being a “fundamental tenet” of the legal system, the concept of fairness was addressed over a few short paragraphs. In many ways, this is unfortunate. This is not to say that the outcome is not the right one but it would have been desirable for the Court of Appeal to ‘unpick’ some of the judicial conduct a little more and to clarify the impact on ‘fairness’ both perceived and actual.
The issues identified by the Court of Appeal could usefully be grouped in the following way: those which involve cross-examination of the claimant, those which involved the claimant’s examination of others and those which relate to the claimant’s disclosure of documentation. Running through these concerns is the issue of the handling of litigants in person and the general ‘tone’ of the interventions by the judge.
It is not clear from the judgment of the Court of Appeal whether, absent some of those ‘groups’ the trial would still have been unfair or whether any particular type of poor conduct on their own would have been sufficient. For example, general ‘rudeness’ on its own might well be dealt with through other means (such as a complaint to the Judicial Conduct Investigations Office). As the question of fairness was one of ‘degree’ it would have been helpful to identify which conduct contributed to a lesser or greater degree to the unfairness of the trial. For example, was it more or less unfair to disrupt and potentially cut short Mr Serafin’s cross-examination of other witnesses (Number 6 in the list above) than to step into the cross-examination of the Claimant (Numbers 1-4) or where the interventions were not made during the giving of evidence?
Whilst it is important that an assessment of ‘fairness’ is not made in isolation and we should not reduce the analysis to a mechanical weighting exercise, it would have been open to the Court of Appeal to attempt to clarify precisely which aspects of the conduct brought about the unfairness and the extent of their contribution. It may be that an inference could be drawn from the final substantive paragraph of the judgment:
“the Judge not only seriously transgressed the core principle that a judge remains neutral during the evidence, but he also acted in a manner which was, at times, manifestly unfair and hostile to the Claimant.” (at [119])
One potential reading of this is that the core principle – which relates to remaining impartial during the gathering and testing of the evidence – was the central and necessary component of the case that was compounded by the manner of the judge’s other interventions.
The other striking feature of the judgment of the Court of Appeal is the strength of criticism levelled at the first instance judge. It is unusual to read such strongly worded criticism by an appeal court. To describe a judge’s language as “threatening” and “bullying” is a highly unusual step.
Judgment of the Supreme Court
The Supreme Court - comprised of Lord Reed, Lord Wilson, Lord Briggs, Lady Arden and Lord Kitchen - gave judgment on 3rd June 2020 (Serafin v Malkiewicz [2020] UKSC 23). The appeal against the decision of the Court of Appeal was based on 3 issues. The first two related to the substantive legal dispute (the proper interpretation of the public interest defence and the appropriateness of the Court of Appeal interfering with the findings of fact made by the judge). The remaining issue related to whether the conduct by the judge can be sufficient to render a trial unfair.
Starting again at the end, the Supreme Court dismissed the appeal and upheld, unanimously, the finding of the Court of Appeal that the conduct of the judge had rendered the trial unfair. In upholding the decision the Supreme Court altered the order of the Court of Appeal (of remittal on damages) and ordered a full retrial.
It is interesting to note that in his opening paragraph Lord Wilson chose to highlight the conduct point over and above the matters of substantive law. Lord Wilson makes it clear that the analysis of the substantive point of law is not part of the decision as it was not necessary to dispose of the case (at [1]) due to the finding that the trial was unfair. Later in the judgment, the Supreme Court notes that had the Court of Appeal approached things in this order – dealing first with the fairness of the trial – then it might have also come to the conclusion that a full retrial was necessary.
Legal principles
The legal principles are explored in paragraphs [37]-[46] of Lord Wilson’s judgment and centre first on untangling the concepts of bias and fairness. The Court of Appeal had not expressly dealt with the issue of bias (apparent or actual) but the Supreme Court was keen to note that they are ‘overlapped’ but ‘distinct’ concepts (at [38] citing M & P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) at [32]-[42]). Fairness goes to matters related to the case and is determined by reference to “objective judicial assessment”, whereas bias is assessed “through the eyes of the fair-minded and informed observer” and concerns prejudices unrelated to the facts or legal merits of the case (at [38]). The Supreme Court determined that the matter was one relating to the fairness of the trial and not to alleged bias on behalf of the judge.
The Supreme Court favourably cited Lord Denning’s comments (in Jones v National Coal Board [1957] 2 QB 55) on the need for judges to minimise the number of interventions, particularly when oral evidence is being given as this poses a greater risk of the judge descending into the arena (Serafin at [41]). The Supreme Court thus drew a distinction (not made in the Court of Appeal) between different types of judicial intervention and the risks that they carry at various points in a trial. This is an important clarification absent in the reasoning of the Court of Appeal, or at least not expressly considered.
The judgment also drew a distinction between the quality of a judgment and the fairness of the process that led to it (at [44-46]). In making this distinction the Supreme Court is reinforcing the notion that unfairness in the conduct of the trial cannot be remedied by the quality of the judgment produced. This is partly predicated on the notion that the fairness of the trial will determine the extent to which the case of a party can be properly made.
The Supreme Court spent more time than the Court of Appeal in assessing how the principle of fairness applied to litigants in person. Lord Wilson’s judgment highlights that the link between judicial conduct and the standards to be applied in cases concerning litigants in person was a novel point (at [46]). Whilst noting the difficult line a judge must walk in assisting a litigant in person (so as not to be accused of descending into the opposite side of the arena), the judgment was clear that the imbalance in resource and experience is something to which a judge must be alive and alert. This involves the judge keeping at the forefront of their mind that unrepresented parties are less able to ‘withstand a degree of judicial pressure and, undaunted, to continue…to put the case’ (at [46]). Moreover, the judgment cited (again at [46]) guidance provided by The Judicial College that:
“The judge is a facilitator of justice and may need to assist the litigant in person in ways that would not be appropriate for a party who has employed skilled legal advisers and an experienced advocate. This may include… Not interrupting, engaging in dialogue, indicating a preliminary view or cutting short an argument in the same way that might be done with a qualified lawyer” (Equal Treatment Bench Book (2020) at para 59 of Chapter 1 my emphasis)
Judicial conduct in the case
The Supreme Court adopted a similar approach to the Court of Appeal in that it appended to its judgment a Schedule that contained relevant extracts from the transcript. The Supreme Court, however, had the full transcript of the first four and a half days of the hearing. From the full transcript 25 ‘excerpts’ (labelled as A1, A2 etc.) were selected and helpful comments were added to indicate the Court’s analysis of them. It would not be sensible to reproduce all 25 here but many are the same as were considered by the Court of Appeal, discussed above. They can helpfully be categorised into:
Problematic interventions during Mr Serafin’s cross-examination (A1, A2, A3, A5, A6, A7, A8, A9, A10, A11, A12)
Problematic interventions during Mr Serafin’s examination or cross-examination of others (A14, A15, A16, A17, A18, A21, A24, A25)
Those that relate to general tone (A2, A3, A4, A9, A13, A15, A16, A19, A21, A22, A23, A24, A25)
Those that relate to disclosure (A5, A6, A7, A8, A11, A20)
To take an example of each of the categories above, to give a flavour:
A2: “J: You said this was an internet claim? C: Yes. J: Well, it cannot be because (a) it does not look as if it is an internet claim - C: Let me tell you how it was. J: Do not keep on interrupting me. C: I’m sorry. J: You interrupt counsel and now you are interrupting me.
A16: “C: Yeah, but that was rather criticisms for you and not congratulations, isn’t it? D1: Exactly. J: That was not [a] brilliant question, was it? ...”
A3: “J: There is always a lack of clarity with your evidence which I am finding irritating”
A5: “J: Where are the documents to show your investment of £385,000? C: I’ll try to find that in a second, but -J: Well, it should not take you a second. It should take you a nanosecond, because it is obvious that this point would be raised.... J: I want to see them at one minute past two, the page. If you do not show them to me, I will draw inferences. Do you understand what that means? C: Yes I do.”
After explaining the approach taken, Lord Wilson notes its limitations and the caveats that should be attached. Namely that the extracts represent only a small part of the transcript and that there are “long stretches of evidence in respect of which no criticism of the judge can be made” and that some of the extracts on their own “would not merit significant criticism” (at [48]). The same paragraph also points out that the transcripts are written documents and that assessing without witnessing the way in which words were spoken or visual cues is not straightforward.
Following this the judgment turns to an assessment of the extracts in light of the caveats above. The Supreme Court held that:
“when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair.” (at [48], my emphasis)
Addressing the point that Mr Serafin was unrepresented, the Supreme Court went on to hold, perhaps most significantly that:
“Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented.” (at [48])
The consequence of the above is that a judgment “which results from an unfair trial is written in water” (at [49]) and so a full retrial was necessary, a rather sad conclusion in that the "justice system has failed both sides". The Supreme Court did go on to give a view on some aspects of the substantive legal issues at [52]-[78] but, as a result of the need for a full retrial, this does not form part of the decision.
Comment on the significance of the judgment
A comment on the Supreme Court’s judgment
The judgment will be an important point of departure (and arrival) for exploring the delicate question of when judicial conduct can impact on the fairness of a trial. The Supreme Court is right to note the sensitivity involved and adopted a much more cautious, sensitive and deferential tone than that evidenced by the Court of Appeal. When such a claim is made:
"In respect of the conduct of any judge, however senior or junior, such a finding carries profound sensitivity. Our duty is to appraise it with the utmost care.” (at [1])
Some further salve for the judge concerned can be found in the court’s praise for the judgment:
“the defendants commend the quality of the judge’s reserved judgment. It is on any view a remarkable document…It is intricately constructed and beautifully written” (at [44])
Nonetheless, the Supreme Court was right to make the assessment of the fairness of the proceedings the central and prior concern of the appeal. This is a powerfully written and tightly argued analysis of the requirements of ‘fairness’ in the context of judicial conduct. By focussing the principle on the interventions during the giving of evidence, the Supreme Court has further bolstered and reinforced the fundamental principles of an adversarial legal system. The treatment of ‘fairness’ is concise (but less so than it was in the Court of Appeal) and further helps to differentiate it from the notion of ‘bias’.
The judgment is also significant for a number of other reasons.
Unrepresented parties
One of the features that distinguishes Serafin from other cases on ‘descending into the arena’ is the fact that Mr Serafin was unrepresented at the hearing in the High Court. If the judge had, indeed, developed an animus towards him then his being unrepresented exposed Mr Serafin to the judge more than would have been the case had he just appeared to give evidence. This amplified and magnified the interaction between the Claimant and the judge, as evidenced by the interventions when Mr Serafin was examining (and cross-examining) witnesses. The Supreme Court also noted the relatively weak position of an unrepresented party to resist and confront judicial pressure. Although the duties that the court might owe to an unrepresented party is well-trodden ground, this is a useful and timely underscoring of the importance of those duties from the most senior court in England & Wales in the context of rising numbers of litigants in person.
The recognition by the Supreme Court of the difficult line that judges must walk is also welcome as is the reminder of the availability of training and guidance.
Routes to redress for matters of judicial conduct
The textbook accompanying the blog highlights the other channels by which an aggrieved party can complain about judicial misconduct in a trial. These sorts of complaints, made to the Judicial Conduct Investigations Office (JCIO), are dealt with outside the main proceedings of a particular case and have no bearing on the outcome. The process manifestly cannot apply to matters that are about “a judicial decision or judicial case management, and raises no question of misconduct” (at para 21 of The Judicial Conduct (Judicial and other office holders) Rules 2014). This would mean that a judge’s comments about the credibility of witnesses or a judge appearing to favour a particular piece of evidence would not fall with the purview of this system of complaints because they relate to the management of the case.
The case of Serafin, also concerned things that might normally fall within the purview of the JCIO. The language of the judge was described by the Court of Appeal as ‘bullying’ and ‘threatening’ and this would transcend the ‘management’ of the case and would seem to be (at least potentially) personal misconduct. And the Supreme Court termed the language used ‘immoderate, ill-tempered and at times offensive’ (at [48]). Given the lack of mention of the JCIO by either the Court of Appeal or Supreme Court, it is important not to put this point more strongly. Nonetheless, it demonstrates an interesting dynamic whereby the line between personal misconduct and case management is not as ‘bright’ as perhaps is traditionally thought.
The other more general point to be made here is that the legal system of England & Wales is actually an interrelated system of systems. If we focus too much on one aspect then we risk not seeing the broader picture. Therefore, even though ‘success’ with the JCIO is limited and produces fairly muted sanctions, there are other mechanisms by which conduct that falls short of the high expectations set by the legal system can be addressed, particularly where they impact on the outcome of a case. Serafin is a good example of this. Only by looking at the patchwork of systems can you get a full and proper understanding of the effectiveness of its individual components.
The system of appeals provides an ideal method of ‘self-correction’ or ‘self-regulation’ of behaviour even where it does not change the outcome of the decision – see Crinion v IG Markets [2013] EWCA Civ 587 for such an example where the Court of Appeal was critical of a judge’s use of one the Claimant’s submissions as the basis of the judgment. In that case Sir Stephen Sedley put it in the starkest terms by saying that he hoped that: ‘a judgment like the one before us will not be encountered again’ (Crinion at [40]).
Although the language of the Supreme Court was forceful in its criticism in Serafin, it is to be welcomed as it supports the notion of the independence of the judiciary. This is far from the first time whereby judicial rebuke has been handed down by an appellate court. Whilst not having the force of a formal finding of misconduct, rebuke by senior courts in a reported case will be a very much more public experience and one where the language may be more direct than the rather anodyne and formal language of a statement from the JCIO.
Judicial behaviour
Many advocates, from within and beyond the legal system of England and Wales, will be used to gruff and brusque ‘no nonsense’ members of the judiciary. Stories of memorable judicial interventions are shared in pubs, dining rooms, restaurants and garden parties around the country. Some judges have a reputation for things that irritate them and others are liberal with their interventions. This, in some quarters, is seen as part and parcel of the cut and thrust of the adversarial system. Others members of the judiciary are more conciliatory and appear to give Job a run for his money in terms of patience. (As an aside, I am reminded of a time that I took part in a mooting competition during my undergraduate studies. The competition was judged by a member of the local judiciary. So liberal and generous was he with his interventions that it did seem that he spoke more than I did. I am probably 15 years too late to lodge an appeal on the basis that he ‘descended into the arena’ and, in truth it spoke more to my limited skills in advocacy than hostility on his part).
I do not seek to make a comment as to which style of judicial case management is the most effective. There is also a risk of painting caricatures of the judiciary and categorising them as ‘harsh’ or ‘patient’, whereas the reality is judges are sophisticated and intelligent professionals who may deploy different tactics depending on the situation and the issue or parties before them. Indeed, there is an argument that different approaches are best deployed in different circumstances and the importance of adaptation of approach to litigants in person is reinforced by the Supreme Court.
The Supreme Court’s judgment does not undermine or seek to enforce a uniform style of judicial conduct. To do so would be to rob the legal system of the richness and diversity that makes it so engaging and interesting to study. However, the baseline test must be one of fairness and there are times where judicial conduct in particular cases can render trials unfair. We should also remember that such instances are thankfully rare.
The concept of fairness is important not only to the parties to a particular dispute but also for faith and confidence in the system as a whole. Public confidence in the actual and apparent fairness of the court process is an important source of legitimacy for the legal system. This is all the more so when the conduct of trials is less open to public scrutiny and awareness than judgments (which are widely published). As the Supreme Court notes, there is little of concern in the judgment of the High Court. The issue is the means by which that judgment was reached. It is important that, when these issues do come to light, they are dealt with robustly.
In summary, the conduct of the proceedings in Serafin is rare and unlikely to be repeated on a frequent basis. The Supreme Court has added significant clarity to the articulation of duties owed by the judiciary to unrepresented parties and has furthered our understanding of the dangers of ‘descending into the arena’ and the need to maintain civility so that cases can be properly heard and adjudicated upon.
This blog is intended to support the teaching and learning of the English and Welsh legal system, as well as being of more general appeal to those with an interest in such matters. It supports the resources in Murphy and Burton, The English Legal System - and its accompanying website.
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