The High Court has thrown out the suggestion that a judge was biased against three litigants in person, saying the deputy master was stern and showed signs of impatience but handled the case in a ‘fair and open-minded way’.

In Rea v Rea & Ors, three brothers involved in an ‘emotionally charged’ probate dispute with their sister sought a retrial on the grounds that the trial was rendered unfair by the judge's conduct. The brothers had represented themselves in the initial dispute, in which they unsuccessfully challenged the validity of their late mother’s will.

They subsequently claimed that Deputy Master Arkush had treated the two sides unequally and had hurried them along. They also claimed he had stifled enquiry into particular points in the evidence and displayed ‘hostility which occasionally suggested an animus’.

The brothers – who were legally represented in the appeal – cited an instance when Deputy Master Arkush refused to break for 30 minutes when one of them felt unwell. It was also claimed the judge ‘took over’ their cross-examination and gave a 'heavy indication' of what he was thinking on day one, warning the brothers they would rack up a ‘much bigger bill’ if they pressed on with the court case.

The High Court dismissed the appeal, saying the deputy master was ‘well able’ to appraise the case fairly. ‘I reject the notion that he sought to stifle appropriate and relevant lines of inquiry, or was hostile in a manner suggesting an animus against the defendants, or treated the two sides unequally,’ Mr Justice Adam Johnson said.

‘He was presented with a difficult and challenging case and in my view worked hard to deal fairly with all those who were involved in it, including the defendants, about whom he was particularly concerned given their status as litigants in person. For all those reasons, in my judgment the appeal must be dismissed.’

The High Court said that while Deputy Master Arkush had been ‘somewhat stern’ and ‘did show signs of impatience’ his behaviour did not give rise to any unfairness.

‘There may, at points, have been some signs of irritation from the deputy master, but if there were, that was because of tendency on the part of the defendants to veer away from the points actually in issue in the case, which in truth were relatively narrow,’ the High Court said.