The Vice President of the Upper Tribunal has recently provided guidance applicable to cases where a party is alleging misconduct by a Judge.

In the recently reported case of Azia (proof of misconduct by judge) [2012] UKUT 00096 (IAC) the official head note states:

A party alleging misconduct by a judge needs to prove it. Parties and their representatives need to ensure that the evidence is collected while memories are fresh. Permission to call evidence before the Upper Tribunal may be refused where, in circumstances where a party has not acted promptly to prepare and disclose evidence, it would be unfair to the other party, or not in the interests of justice.

In Azia, a number of concerns were raised in the grounds of appeal; most relating to the (mis) conduct of the Judge hearing the appeal: for example, terminating examination in chief after 25 minutes and not permitting the appellant to finish his answers. Curiously, these allegations were made solely in the grounds of appeal and were not accompanied by a witness statement from the representative appearing or by another person who had attended the appeal hearing who could corroborate the allegations made in the grounds.

The Vice President was less than impressed with this course. To add insult to injury, the representative appearing before the Vice President then sought to call two witnesses who had been in attendance at the appeal hearing in order to prove the misconduct allegations. However, no one was on notice….. Wholly unsurprisingly, the Upper Tribunal was not willing to entertain this request and this added more fuel to the fire: further guidance issued on the importance of prompt evidence, fairness to parties etc etc.

12.The Tribunal treats allegations made about the conduct of judges with the greatest seriousness. It goes without saying that if grounds of appeal, such as those raised in the present case, are made out, they are very likely to cause a determination to be set aside. But it is not sufficient to make the allegations: they must be substantiated in fact, and in a way that is in itself fair to all interests, including those of the respondent and of justice generally.

If allegations of a judge’s misconduct are to be raised in grounds it may be sensible to consider:

(i) Whether or not you can actually draft the grounds: are you a potential witness?
(ii) If you can attest to the allegations, a witness statement accompanied by a note made either at the appeal hearing or shortly after may be a sensible consideration as an addendum to the grounds of appeal
(iii) Being called as a witness. This may or may not happen, but given the seriousness of allegations of this nature, being called is a very real possibility.

The case also perhaps highlights the problems for counsel in drafting grounds of appeal, having to step back from the case and as a result losing control of that case. Yet for some reason original counsel is repeatedly named in Azia – but not the judge. Contrast this with the case of Nare where the Presenting Officer who drafted the grounds is not named for some reason.