The Rule Against Bias and the Doctrine of Waiver
James Goudkamp, ‘The Rule against Bias and the Doctrine of Waiver’ (2007) 26 Civil Justice Quarterly pp.310–327.
13 Pages Posted: 2 Mar 2016 Last revised: 5 Mar 2016
Date Written: 2007
In recent years, the courts in many jurisdictions have frequently been called upon to consider the right to an impartial tribunal. In doing so, the courts have had cause to examine the circumstances in which this right may be waived. This article offers an analysis of the doctrine of waiver as it operates in this context. It also sets out the arguments that support and militate against its application. It is argued that, contrary to the position which the law presently adopts, the presence of the doctrine in this setting is misconceived. The right to an impartial tribunal exists principally for the purpose of upholding public confidence in the administration of justice. Permitting individual litigants to waive this right impedes the realisation of this objective.
Keywords: civil procedure, judicial bias, judicial independence, waiver
JEL Classification: K41
Suggested Citation: Suggested Citation