It is elementary that judges must adjudicate fairly between the litigants making and defending a claim. For this, judges are helped by the litigants and their advocates. But judges must also be fair to witnesses, and to third parties who may be affected by a trial, even if they are not present. For this, judges are on their own. Aggrieved litigants have clear rights of appeal. If witnesses or third parties are aggrieved, it may be much more difficult for judges, first to appreciate that fact in good time, and then, to find a remedy.
This difficulty was the subject of a successful appeal by two witnesses in family proceedings in W (A Child), Re  EWCA Civ 1140. The trial judge had, without prior notice, announced a very serious adverse finding against two witnesses. A police officer and a social worker, as well as against the local authority, which was a litigant. The Court of Appeal held that the judge’s action breached the two witnesses’ Art 8 rights to respect for their private lives. The judge had also acted in breach of the witnesses’, and the local authority’s, right to a fair trial, both under Art 6, and at common law. The Court of Appeal ordered that the judge’s adverse findings should be treated as if they had never been made in any form. Having found that there was a wrong, there had to be a remedy, even if, as in this case, it was a remedy that had never been granted before.
Judges rarely go so badly wrong. But even Lord Mansfield did, and he may be the greatest English judge of all time. He started a judgment (Da Costa v Jones (1778) 2 Cowper 7 29 735–6; 98 ER 1331) saying “sorry” to a transvestite French person, le Chevalier d’Eon, who had not been present at a trial. He said it three times in the first three sentences.
The defendant in that case had undertaken to pay to the plaintiff £300 “in case the chevalier should at any time prove to be a female”. The jury award the plaintiff £300 at a trial held in the autumn of 1777. But soon afterwards Lord Mansfield was sorry he had not stopped the case. He took the extraordinary step of informing the defendant’s counsel that there might be a ground for defeating the claim which had not so far been raised. It was that the case should not have been allowed to proceed, because of the affect it had on the Chevalier d’Eon. So, in January 1778, the defendant made an application for a new trial, to “arrest the judgment”. This time three other judges sat with Lord Mansfield.
The plaintiff argued that the judgment should stand. There was nothing unlawful in a woman having dressed as a man, or “having fought the battles of her country [i.e. in the army], or served it as a Minister of State”, as the Chevalier had. The plaintiff argued that the evidence in the case (i.e. that the Chevalier was female) had been furnished by the Chevalier in a dispute which “she” had had with another person, and in any event, the case did not affect her. It was a matter of public knowledge that “she” had held the offices “she” had held. (The evidence that she was female could not be set out in the judgment without infringing the Chevalier’s rights).
Lord Mansfield gave the judgment. The case:
Had made a great noise all over Europe… I was sorry that the nature of the action had not been more fully considered. I was sorry… that the witnesses who were subpoenaed had not been told they might refuse to give evidence if they pleased… I have since heard that many of them were confidential persons, servants, and others employed in the way of their profession and business [including “his physicians”]. Had any of them demurred, it would have opened the nature of the action… It is a disgrace to the judicature.
He went on to say that if the Chevalier had applied at the trial to stop the case, he, as the judge would “instantly” have stopped it. People who otherwise have no interest in such a question cannot, just by making a wager, be entitled to ask the court to try whether a woman has committed adultery, or had a child when unmarried, or had some defect in her body. Third persons are not to be allowed to “wantonly expose others to ridicule and libel” in the form of an action.
Lord Mansfield did not need the Human Rights Act, nor Articles 6 and 8 of the ECHR. He was giving effect to common law rights.
Lord Mansfield did not need the Human Rights Act, nor Articles 6 and 8 of the ECHR. He was giving effect to common law rights. The judge’s duty to protect the rights of witnesses and third parties, as well as the rights of the litigants, does not derive from Arts 6 and 8. On the contrary, those common-law rights are one of the sources for Arts 6 and 8. Perhaps the Court of Appeal in Re W could have reached the same result independently of Art 8.
It is not just by means of libel and privacy actions that reputation and privacy are protected. Witnesses and third parties adversely affected by litigation rarely do ask the judge to protect their rights. As Lord Mansfield shows, it is the duty of judges to act of their own motion – and to do so belatedly if they omit to do so as soon as they should.
Featured image credit: “Old Bailey Microcosm” by Thomas Rowlandson and Augustus Pugin. CC0 Public Domain via Wikimedia Commons.