Appointment to the bench is not a licence for judges to be gratuitously rude to those appearing before them

1 February 2015 by Martin Downs

The target of this barb was the case management style of HHJ Dodds. The author, one of three Judges of Appeal empanelled in Re A (Children) [29 January 2015] (we will have to await a full judgment to discover which as – so far – only a Lawtel summary is available).

HHJ Dodds is well known to readers of this blog. His style of case management was also analysed (and found wanting) by the Court of Appeal the following day in Re S-W (children) [2015] EWCA Civ 27 (30 January 2015). The judgments leave one to ponder whether these cases are a product of the stresses that have emerged from the greater expectations now put on the shoulders of judges to case manage litigation or whether, as previously discussed in this blog by David Hart QC here, it is a problem that arises with clever judges who find that they are, by temperament, not inclined to listen patiently to other people (generally considered to be a core part of the job description).

In Re S-W (children), HHJ Dodds made final care orders concerning three children at a hearing designated for case management less than three weeks after the application was made. The Court of Appeal overturned the orders (no party supported the judge’s actions) deeming care proceedings to be inapt for summary judgment in all but the most exceptional of circumstances (e.g. consent). Amongst the enumerated problems were that, the father of one of the children had not been served with notice of the proceedings, the children’s Guardian had not seen the children and there were no final care plans before the court. The judge did not even give a reasoned judgment. The Court of Appeal had to look at the transcript instead. This revealed that the judge had made his settled (and trenchantly expressed) view known within minutes of the hearing commencing. According to the court,

All the parties crumbled under the judge’s caustically expressed views.

His riposte to the request from the children’s Guardian to see more material was to express the view that a recent Practice Direction on Bundles signalled the end to what he referred to as, “this sort of Victorian detail”. He wished one of the children “every good luck in the world but the Children Act and the court has nothing to do with it”. The Court of Appeal described the approach of HHJ Dodds as, “fundamentally unprincipled and unfair” with Lewison LJ stressing that, “A closed mind is incompatible with the administration of justice” and cited the judgment of the President in Re TG:

The task of the case-management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (the Convention).

In his judgment the President adapted a familiar aphorism by saying,”‘justice can … be denied if inappropriately accelerated..” He went on,

a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn. It is one of the oldest principles of our law – it goes back over 400 years, to the earliest years of the seventeenth century – that no-one is to be condemned unheard.

He added that a parent who wishes to give evidence in answer to a local authority’s care application must surely be permitted to do so and they should also (in almost all circumstances) be permitted to challenge the evidence against them by means of cross-examination.

The judge suggested the representative of the child put her crash helmet on.

The other case concerned the treatment by HHJ Dodds of an application brought on behalf of a child so as to make a Declaration of Paternity (which was in doubt). Thus far, the judgment of the Court of Appeal in Re A (Children) of 29 January 2015 is only reported on Lawtel. However, it is apparent that all parties agreed that a DNA test should be undertaken at the outset of the hearing, However, HHJ Dodds gave the impression that his mind was closed to this proposition from the outset in so far as his opening gambit to the representative of the child was to say that she might want to put her crash helmet on. This was swiftly followed by a threat of costs. The judge commented that

the lunatics had truly taken over the asylum, and that just because the lunatics had said that they wanted something did not mean that they should be spoon-fed.

He then disclosed that he was bitterly resentful at how much of his Saturday he had spent reading material that he described as “codswallop”. Unsurprisingly, he dismissed the application for a declaration. The decision was overturned in the Court of Appeal on the basis that HHJ Dodds had not allowed proper submissions, his premature threat of costs indicated a closed mind to the application and he had given no proper reasons for dismissing it. The Lord Justices of Appeal concluded that his approach went far beyond anything that could be characterized as case management and deplored his unrestrained and immoderate language. If the Telegraph is to be believed here it would appear that judgment is awaited in at least one other case involving another judge where an appeal was allowed on the basis of “intemperate judicial dialogues.” It may be that the Court of Appeal is about to give fresh meaning to its “Civil Division.”

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