Bob files a civil lawsuit agaist Rob. For simplicity, let's assume they both represent themselves.
At the hearing, Bob says: "Here is the evidence. Rob was wrong because of reason A, so he owes me money."
Rob replies: "Yes the evidence is true, but because of reason B reason A does not apply. I do not owe Bob anything."
Bob has nothing to add.
The judge proceeds making a judgment. Let's consider three alternatives:
- He simply agrees with Rob: reason B indeed negates reason A. No questions here.
- "Here is reason C why reason B in these circumstances does not actually negate A as Rob contends, so Rob still owns money to Bob."
- "Reason B does indeed negate reason A as Rob contends. However, notwithstanding with that, here is reason D why Rob is nevertheless at fault, so he owns money to Bob."
In adversarial common law jurisdictions, will judgements 2 or 3 be inappropriate for a judge to make? Are there rules in place that forbid judges from making judgements like either 2 or 3?
As a very simple example, the above reasons A, B and C can be instanced this way:
- Bob's A: "Rob went on red light so he is liable"
- Rob's B: "Yes I did, but that was right turn, which is allowed there"
- Judge's C: "Right turn on red is indeed allowed there but not on Sundays when the incident happened, therefore Rob is liable".
Clearly, reason C was not raised by either party. Will the judge be allowed to not present it to Rob before delivering it in judgement?
This question has been induced by some statements made in feedback to this question:
Courts generally cannot consider arguments that aren't raised by a party in the case.
By @Tim Lymington:
It would clearly be unfair (as phoog says) for the judge to base his judgment on his own research without giving either counsel a chance to consider it
So, how do those statements stand when judge, merely applying the law, can't help generating a new argument that neither of the parties thought of?