In its decision of 24 November 2017 (ECLI:NL:HR:2017:3016), the Dutch Supreme Court confirmed that a judge is allowed to critically interrogate a witness and remind a witness of his oath. Such action is not an indication that a judge is not impartial or independent.
Fire in a multi-tenant business building
A fire destroyed a multi-tenant business building in the Dutch city of Beverwijk. One of the companies renting a unit in the building was Planet Little Kids Furniture. It used its unit to store furniture, which was lost in the fire. Planet claimed damages from the owner of a truck parked in an adjacent unit in the building, arguing that the fire was caused by a short circuit in the truck's battery. Planet also sued the tenant of this adjacent unit. According to Planet, the unit was not equipped with the appropriate fire precautions. One of the legal grounds Planet invoked against the tenant was strict liability for defective buildings. In another blog I have discussed the Supreme Court's decision on this legal ground. In this blog, I will discuss a procedural matter raised by the tenant before the Supreme Court (together with the owner of the truck against whom Planet's claim was granted by the Court of Appeal). This matter pertains to witness examinations before the Court of Appeal.
The withdrawal of a judge
During witness examinations, the (single) judge presiding the examinations had confronted one of the witnesses submitted by the tenant with inconsistencies between his testimony and written evidence. The judge had also repeatedly reminded the witness of his oath to tell the truth. Subsequently, the tenant withdrew the witness, who allegedly no longer felt free to give evidence in the proceedings. In response to this, the presiding judge announced that deliberations would take place with the other two judges (not present at the witness examinations) adjudicating the case as to whether or not he would continue to preside over the witness examinations. The parties did not object to a change of the presiding judge. Subsequently, further witness examinations were heard by one of the two other judges adjudicating the case. The judge that had withdrawn from the witness examinations continued as one of three judges adjudicating the case and participated in rendering the final decision of the case. According to the tenant, this judge should have withdrawn from the case altogether and been replaced by another judge.
Critically interrogating and impartiality and independence of the court
The Supreme Court rejected the complaints of the tenant. It held that a judge is by its nature competent to critically interrogate witnesses, particularly in cases of inconsistencies between testimonies and written evidence. A judge may also remind the witness of his oath. Critically interrogating a witness or reminding the witness of his oath is therefore not a signal of a judge not being impartial and independent. The Supreme Court added that in this particular case the judge had good reason to critically interrogate the witness given the written evidence before the court. The argument by the tenant that the judge had more or less voluntarily agreed to withdraw to avoid being formally challenged by the tenant was also rejected by the Supreme Court for lack of evidence in the official records of the witness examination or other documents. According to the Supreme Court, there were no grounds for the tenant to expect that by withdrawing from the witness interrogations the judge would withdraw altogether.
Voluntarily withdrawing in a half-hearted way
In general, one could agree to the Supreme Court's decision that the mere fact that a judge critically interrogates a witness does not mean that such judge is no longer impartial or independent. The problem in this case is that the presiding judge apparently decided to voluntarily withdraw, but did so half-heartedly. He announced that he would deliberate with the two other judges whether or not he would continue to preside the witness interrogations. Afterwards, another judge took over and also presided the hearing subsequent to the interrogations. From this, it is possible to see how the tenant may have had the impression that the judge had withdrawn completely and would no longer participate in adjudicating the case. The decision of the Supreme Court that there were no grounds for the tenant to expect so, should in this respect be understood as there being no evidence recorded in the official records made at the time to support the tenant's argument.
In order to avoid such unclear situations, it is advisable for parties to use the official and statutory route of challenge, if there is doubt over the impartiality or independence of a judge involved in the proceedings. Other judges will then formally decide whether or not the challenged judge will continue adjudicating the case. The status of this judge is then clear to everyone. As for judges, it is advisable that they do not voluntarily withdraw, but instead wait for a formal challenge by one of the parties. Alternatively, if a judge decided to withdraw voluntarily they should do so fully (and not only from witness examinations).