Feud with individual judge

Hi all,

I’m sure this must have come up before on here but I’ve been searching and not found anything.

Long story short, out of around 30 appeals in the last 2 years, clients I have represented have lost two of them. These two have both been chaired by the same judge. I realise that this doesn’t necessarily indicate a problem with this judges decision making, however I do think these are both very questionable decisions that don’t seem to have taken the extent of mental health conditions into account and I have requested a statement of reasons for both. 

I am now becoming slightly concerned that this could lead to some sort of feud between myself and the judge that could potentially prejudice him against future clients in future tribunals that I’m involved with.

Would be very grateful if more experienced members on here could provide any advice around this. Am I being paranoid? Is it worth requesting an adjournment on these grounds if I get this judge again?

I have a similar problem with a certain judge. I seem to get the decision as being ‘lack of credibility of the appellant’.
I challenge these decision as it is in the best interest of the clients. This should not affect the relationship between a representative and judge as you are exercising the rights that the law allows.
I am interested to hear anyone else’s views on this issue.

There is no easy answer!

We have an issue with decisions of tribunals chaired by a particular judge where the decisions (ESA/PIP) are regularly very harsh and outside the range we would expect from any other tribunal given the clients conditions / needs etc. Of course this does raise the issue of the role of the other panel members in the decision making process and why they appear harsh only when sitting with this particular judge.

However the presumption is that judges / tribunals are independent and entitled to reach a conclusion which may be different to that any other judge / tribunal may reach (subject to error of law etc).

Unless a judge’s behaviour is unproffessional (for example offensive comments) it is not appropriate to make a complaint.

A number of organisations did raise concerns about the judge at the local Tribunal Users Group. Whilst the official line from the district judge was that ‘judges are independent’ - informally the concerns were noted. Of course we will never know what action if any results. Taking this approach may depend very much on your relationship with your district judge and may be frought with difficulty (or you may simply be ignored - or be seen to be ignored but note is actually taken??).

Tactically I would suggest you keep copious notes of the questions asked and evidence given at the tribunal (frequently our record is some what different to the record of proceedings (ROP) provided by the judge). We almost always request a statement of reasons (SOR) and almost always make an application for leave to appeal in cases presided over by this particular judge. Again informally it is likely the frequency with which SOR’s and leave are being requested against this judge is being noted.

Our experience is similar in that this particular judge appears to look for any reason to discredit the claimants evidence. Often spending a long time questioning on a very specific event or issue (such as claimants estimate of distance or how they managed to mobilise whilst on a family holiday). We frequently find the evidence given is not accurately recorded in the SOR, ‘cherry picked’ or even transposed to read as the opposite.

On the general issue of credibility Judge Jacobs recent decision may assist in an application for leave
https://www.rightsnet.org.uk/welfare-rights/caselaw/item/basic-principles-of-fairness-and-assessing-evidence-as-a-whole-as-protectio

even if (which you’ll never prove) the judge in question doesn’t like you as an individual, you’re much better just appealing decisions where errors of law are apparent.  Most judges are bound to start reflecting on their decision making etc when they get overturned all the time…....

and turn it about the other way; does the DWP think that the judges in front of whom you succeed are biased against the DWP?

it is rarely wise to take these things personally.

On the general issue of credibility Judge Jacobs recent decision may assist in an application for leave
https://www.rightsnet.org.uk/welfare-rights/caselaw/item/basic-principles-of-fairness-and-assessing-evidence-as-a-whole-as-protectio[/quote]

I’ve quoted this in my application for permission to appeal to the Upper Tribunal. Couldn’t have got better timing.

Clear head required I think. In short I think it’s a dangerous game to use losses at tribunal to conclude that 1 of 3 panel members has an issue.

At slightly more length…

Nothing wrong with requesting SORs where appropriate. Pursue to UT if there’s an error of law. If the explanation for the decisions includes a question mark over the credibility of the appellant then the Jacobs decision is clearly going to be the go to decision. I would be wincing if I were the FTJ responsible for that specific case. Textbook prejudice. 

You can’t however adduce prejudice until you have some specific evidence of it and you have to build into that assessment the fact that knowing you have that FTJ may lead to an unconscious conclusion that the appeal is doomed to fail and may colour preparation etc. A further loss in itself is a dangerous thing to presume prejudice from. Not least this is because of who else was on the panel.

DQTMs and medical professionals can just as easily take against a rep. or, more likely, be generally anti-appellant. Just as likely is the disbelief that certain conditions or aspects of conditions don’t exist. The FTJ may write the decision and they may have led the panel as to the correct approach to the case etc. but that does not mean that it’s the judges decision alone. I’ve seen plenty of hearings give a unanimous decision where the judge clearly bowed to the allegedly superior knowledge of the medical professional when an appellants impairment happens to be the latters particular area of expertise. DQTMs seeing a judge do that may well follow. 

Thanks all for feedback, much appreciated. I will just try and challenge the decisions through the proper procedures and try to avoid overthinking things.

ClairemHodgson - 26 July 2017 03:12 PM

it is rarely wise to take these things personally.

I agree, but sometimes it’s easier said than done!