Performance assessments, gradings, appraisals — upwards, downwards and 360 degrees: once a taboo subject so far as the judiciary is concerned, the idea of judging the judges themselves is discreetly on the agenda.

The latest stimulus to the debate came last week from commercial lawyers. They would like judges to be appraised by the people who use their courts — in other words the litigants — to ensure that they get a better service.

Hilton Mervis, a partner with S J Berwin, and promoter of what is called upward appraisal, says: “I have spoken to some senior judges who are supportive. One said to me: ‘I would not like the first time I received feedback to be at my retirement party’.”

The idea, he says, is that such feedback would be private and focus on how a judge handled a trial, rather than on his legal knowledge or the decision itself, which would undermine judicial independence and is anyway the task of the Court of Appeal. “Judges sometimes complain of feeling isolated and we believe that formal feedback would help them to improve their performance.”

How would it work? After each hearing, he suggests, clients and lawyers could fill in a form asking such questions as: did you feel your case was dealt with courteously; did you have the opportunity to make your points; had the judge read the papers; did the court intervene sufficiently to suggest alternative ways of resolving the dispute?

It would also have avoided the current spectacle in which a High Court judge, Mr Justice Peter Smith, faces disciplinary inquiry because he refused to stand down from a case in which he had links with one of the parties.

Mervis has backing from within the Commercial Litigators Forum, a group of commercial solicitors and barristers who are broadly supportive. A recent survey for Legal Week magazine found 43 per cent in favour, with another 41 per cent possibly in favour, 29 per cent undecided and fewer than 5 per cent against.

The idea is well-timed. There is already a working party of judges looking generally at the idea of appraisal of judges by their peers. Judges across all ranks could find themselves being assessed on such qualities as handling a court, showing authority, communicating and resolving issues and managing time and workloads.

Plans are tentative and at an early stage. Their genesis is the review on criminal courts by Sir Robin Auld in 2001 who recommended performance appraisal, if carried out by a judge of the same or higher rank.

Judges naturally fear any potential threat to their independence in judicial decisions or any risk of being named and shamed or paid by results. But Sir Robin said that properly conducted, appraisals would not involve any such threat. He suggested starting with the lower ranks and then looking at appraisals of full-time more senior judges. Since then, appraisal and mentoring has been brought in for deputy district judges and there has been a pilot scheme for recorders on the Northern circuit.

But backers of the idea say it is illogical to confine appraisals to the lower tiers of judges and to the magistracy, where it also takes place.

The hot potato of appraisals is being handled by Mr Justice Andrew Smith, who chairs a working party on the topic. It is too soon to know what will emerge and he has to be sure to carry the judges with him. But the pilot scheme had “showed the potential benefits of such a scheme”, he says.

Judge Stephen Gerlis, who has acted as an appraiser, says that it involves watching a deputy district judge in court for a day then filling out a form that goes to the deputy’s mentor, another district judge. The appraisals can be used when the deputy goes for promotion.

“The appraisal is pretty effective in picking out problems, particularly time management. The downside is that it is quite stressful for the deputy district judge, knowing that his or her every move is being watched and it is tiring for the judge doing it.”

Richard Susskind, Times columnist, lawyer and adviser to the judiciary, has long urged performance appraisal of judges as essential if they are to command respect in a modern democracy and provide a good service.

Judges, he says, need to be actively managed as a workforce and in the public sector people need to be accountable for their work. “In relation to judges, this accountability requires that their work is neither shrouded in secrecy nor opaque to non-lawyers.”

Of course, judges’ decisions should not be assessed. But there is room, he argues, for reviewing their interpersonal skills: courtesy and general helpfulness, listening and communicating skills. “Judges should be attentive, receptive and not bored with proceedings . . . and when they speak, must be readily understood and keep unnecessary jargon to a minimum.”

Judges will say that they are already all of these things. But the days of the rude, abrupt judge — if dying — are not over yet. Mervis points out that many partners in City law firms face appraisal by junior, senior and parallel colleagues — 360 degrees — and it has become accepted.

“Initially the idea met with firm resistance, most notably because it was felt that aggrieved assistants would use it as a means for criticising partners in bad faith under the cloak of anonymity. But the process had engendered respect. When you deal with junior staff, you find now that you make more effort to look up and speak courteously to them.”

Perhaps when every judge, and “not just 99 per cent of them”, realises that being civil, putting effort into giving the appearance of doing justice may be noted down, he says, it will provide that extra spur that will improve the quality of the justice system.

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