The presiding judge sitting with two elder brethren of Trinity House, was compelled to retire due to ill health in the middle of the case. The president Sir Jocelyn Simon ordered, in the circumstances, that the action be heard de novo and Mr Justice Karminski was nominated to re-hear it. The plaintiffs applied to him for an order restoring the action to the list for hearing and that the evidence already given in court on commission should be used, and an order for directions made by the previous judge be renewed so as to enable the same elder brethren, who had sat as assessors at the first hearing, to sit again. Mr Justice Karminski plainly regarded himself as continuing the proceedings previously heard by Mr Justice Hewson. ‘The matter, so far as I am concerned, would have been quite without difficulty as a matter of principle but for the observations of Scrutton LJ in Coleshill . . .’
Citations:
[1968] P 270
Jurisdiction:
England and Wales
Citing:
Distinguished – Coleshill v Manchester Corporation 1928
During the trial, the judge, Mr Justice Fraser had died and the case had been continued by Mr Justice Acton ‘at the urgent request of the parties’ with earlier witnesses not being recalled but the new judge having recourse to the transcripts.
Cited – In re British Reinforced Concrete Engineering Co Ltd 1929
Practice on incapacity of the judge during a trial. . .
Cited by:
Considered – Hitch, Regina (on the Application of) v Commissioners for the Special Purposes of the Income Tax Acts Admn 4-Mar-2005
Before the appeal had been concluded under section 45(3), one of the two commissioners was incapacitated. The taxpayer appealed the refusal of a de novo hearing and the replacement of the tax commissioner.
Held: The reconstitution of the panel . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 26 November 2022; Ref: scu.223885