Facing up to Actual Bias



Publication Details

J. Goudkamp, 'Facing up to Actual Bias' (2008) 27 (1) Civil Justice Quarterly 32-39.


The common law of England recognises three species of bias: actual bias, apparent bias and presumed bias. Actual bias exists when a judge is in fact prejudiced against one of the parties. Apparent bias, which is also known as preceived and ostensible bias, occurs when the hypothetical fair-minded and informed observer believes that the judge may be biased. Finally, a judge is presumed to be biased if he has an interest, not necessarily pecuniary, in the outcome of the proceedings. A litigant who shows that a decision is infected with bias, of any type, has a right to have the decision set aside. Equally, if a litigant demonstrates, in advance of a decision being made, that the decision would be tainted with bias, the judge before whom the proceedings are listed is required to disqualify himself. these principles are subject only to the doctrines of necessity and waiver.

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