JUDICIAL INTERVENTION, INTERRUPTIONS AND HOT TUBBING: JUDICIAL LATITUDE IS NOT UNLIMITED

In Shaw -v- Grouby [2017] EWCA Civ 233 the Court of Appeal made some observations about the dangers of a judge getting too inquisitorial in the course of a trial, particularly in the course of cross-examination.

“The judge intervened in the examination of the experts… I do not read any part of the transcript as the judge bullying the expert witnesses. The fact that he subjected them to prolonged periods of questioning is to be expected nowadays in the age of hot-tubbing although it obviously has its limits.”

THE CASE

The defendants appealed the decision of the trial judge in relation to findings in relation to a right of way and boundary.  One of the grounds of appeal was the conduct of the trial. The key allegation was summarised:-

“It is said that the judge’s questions and interventions both during the factual and the expert evidence amounted to his entering the arena so as to throw into doubt his objectivity and impartiality and made a fair trial impossible.”

THE JUDGMENT ON THIS ISSUE

Lord Justice Patten stated

1. 1. I can now turn to the issue of whether there was a fair trial. Mr Auld does not allege bias but he says that the judge’s excessive intervention during the examination of both witnesses of fact and the expert witnesses turned the trial into an inquisitorial rather than an adversarial process. There were constant interjections by the judge; he all but took over the cross-examination of the defendants, particularly in relation to their evidence about the yellow plastic bins which they placed on the driveway; he conducted a detailed examination of the experts with a view to getting them to agree to his views and at one point began to answer the questions which had been put to the expert by counsel in cross-examination. The result was that the defendants through Mr Auld were deprived of the opportunity properly to put forward their case.

   2. Guidance on what can amount to procedural unfairness was given by this Court in Southwark LBC v Kofi-Adu [2006] EWCA Civ 281; [2006] HLR 33. In that case there were persistent interruptions by the judge including occasions when he told counsel that there was no point in cross-examining the witnesses or became involved in fairly heated exchanges with counsel about what evidence was relevant. At times the judge’s interventions reached a point where the witness could, it was said, be forgiven for feeling that she was facing two simultaneous cross-examiners in the person of counsel and the judge. In his judgment Jonathan Parker LJ said:

“142. It is important to stress at the outset that, within the bounds set by the CPR , a first instance judge is entitled to a wide degree of latitude in the way in which he conducts proceedings in his court. However, that latitude is not unlimited. Ultimately, the process must always be the servant of the judicial function of dealing with cases justly (see the overriding objective expressed in CPR 1.1). In an adversarial system such as we have developed in this jurisdiction the discharge of that function requires the first instance judge (as Lord Denning M.R. put it in Jones v National Coal Board [1957] 2 QB 55 at 63):

“… to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large ….”

…..

145. Nowadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors, and the above observations (made, in the case of Lord Denning M.R., almost 50 years ago, and, in the case of Lord Greene M.R., more than 60 years ago) must be read in that context. That said, however, it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel’s submissions) must inevitably carry the risk so graphically described by Lord Greene M.R. The greater the frequency of the interventions, the greater the risk; and where the interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one.

146. It is, we think, important to appreciate that the risk identified by Lord Greene M.R. in Yuill v Yuill does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge’s descent into the arena (to adopt Lord Greene M.R.’s description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair.

147. In the instant case we are left in no doubt that the judge’s constant (and frequently contentious) interventions during the oral evidence, examples of which we have given earlier in this judgment, served to cloud his vision and his judgment to the point where he was unable to subject the oral evidence to proper scrutiny and evaluation. This conclusion is confirmed by his irrational findings in relation to housing benefit and by his complete failure to address the credibility of Ms Kofi-Adu’s evidence in his judgment or to explain why he rejected the evidence of Mrs Aitcheson’s diary sheets. It is also supported by the fact that the references in his judgment to the evidence of the various witnesses are almost all derived from their witness statements, rather than from their oral evidence. Indeed, it is impossible to tell from his judgment what (if any) assistance he derived from the oral evidence which he heard, as opposed to the documentary evidence and the witness statements.

148. In our judgment, therefore, the manner in which the judge conducted the trial led to a failure on his part to discharge his judicial function. That is not to say, of course, that the decisions which he reached on the issues of nuisance and annoyance (including the issue of reasonableness in that context) might not have been reached following a proper evaluation and scrutiny of the evidence. Plainly, they might. The flaw in the instant case lies not so much in the decisions themselves as in the way in which the judge reached them, in that he allowed himself not merely to descend into the arena but, once there, to play a substantial part in the interrogation of the witnesses. In effect, he arrogated to himself a quasi-inquisitorial role which (as Lord Denning M.R. explained in Jones: see [142] above) is entirely at odds with the adversarial system.”

1. The question therefore for us is whether Judge McCahill became so involved in the examination of the witnesses that he either made it impossible for Mr Auld properly to conduct his clients’ case or lost the ability to reach balanced and objective conclusions on the evidence which he heard. The defendants have produced transcripts of the evidence in which the judge’s interventions are shown highlighted in yellow. Some of these are exchanges with counsel rather than questions to the witnesses but there are a significant number of pages where virtually every line is highlighted. We were referred, for example, to the evidence of Ms Stolle where there are pages of questioning by the judge and at least one occasion where the judge interrupts and answers Mr Auld’s question to the expert before she has had an opportunity to do so.

2. The judge understandably did not approve of the defendants’ resort to self-help by obstructing the driveway with the plastic bins or the price which they demanded for the sale of the driveway to the residents. Mr Auld said that the judge became obsessed about this which manifested itself during the cross-examination of the defendants. Mr Auld has analysed the transcripts which disclose that the judge asked Mr Grouby about as many questions as he was asked by Mr Sahonte. The cross-examination on 30 June takes up 52 pages of transcript. On only 7 of those pages is there no question by the judge and on 6 pages virtually the entirety of the questioning is by the judge. At the end of the second day of Mr Grouby’s evidence after his re-examination by Mr Auld the judge was asked whether he had any questions and he then proceeded to ask 52 consecutive questions of the witness.

3. I have to say at the outset that the judge’s interventions, whilst always courteous, were in my opinion excessive and that he should have attempted to postpone his questioning, particularly of the witnesses of fact, until after counsel had conducted his cross-examination except when it was necessary to ask the witness to clarify an answer so that the judge could understand the evidence that was being given. To be fair to the judge, he regularly apologised for what he himself described as his over-eager desire to get to grips with the case but that does not alter the fact that his enthusiasm continually interrupted the examination of the witnesses.

4. That said, I have reached the conclusion that there was still a fair trial and a proper judicial determination of the main issues. The allegation of unfairness requires one to look carefully at what were the real issues in the case and how the judge’s conduct impacted on them. I acknowledge that if the judge’s treatment of the witnesses displays a hostility which gives an impression of bias or a complete lack of objectivity as in Kofi-Adu then the Court of Appeal has little option but to order a re-trial. But that would be an unfair description of how Judge McCahill conducted this case. It is true that he displayed understandable criticism and disapproval of the defendants’ explanation as to why they put in place the plastic bins. But this was a side issue and, although the judge perhaps made more of it than it deserved, my own reading of the transcripts did not leave me with the impression that the judge approached the determination of the boundary and the scope of the right of way in a hostile or unfair manner.

5. Despite the judge’ frequent questions during the examination of the factual witnesses, it remains the case that the defendants had no real evidence to give about the intended line of the boundary. Mr Grouby does not assert as part of his witness statement that the fence existed at the time when Nos. 74 and 76 were contracted to be sold or that he drew the plan in order to represent the line of the fence and stones. The Shaws could give no evidence about this and Mr Sutherland’s evidence was that the fence post-dated the contracts. There was therefore very little in the way of factual dispute on this point. Mr Auld has certainly not been able to identify a significant line of questioning which the judge excluded. The transcript shows that, despite his interruptions, the judge did permit counsel to ask all the questions they wished.

6. The judge intervened in the examination of the experts and, it can be said, did push Ms Stolle to explain why the position of her red lines on the survey plan could not also have been drawn differently. I do not read any part of the transcript as the judge bullying the expert witnesses. The fact that he subjected them to prolonged periods of questioning is to be expected nowadays in the age of hot-tubbing although it obviously has its limits.

THE JUDGMENT OF THE CHANCELLOR OF THE HIGH COURT

The Chancellor of the High Court:

1. I agree with Patten LJ’s judgment, and I too would dismiss this appeal.

2. Since, however, the appeal has raised a criticism of the way the judge handled the trial, I will add a few words of my own. As Jonathan Parker LJ said in Southwark LBC v. Kofi-Adu [2006] EWCA Civ 281: “the risk [of frequent judicial interventions during the evidence] is that the judge’s descent into the arena … may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair”. A judge may always intervene to clarify the evidence or to ensure that time is not wasted, but the trial process can be distorted if the judge intervenes too much.

3. Judicial self-restraint is required to avoid the consequences mentioned by Jonathan Parker LJ and, of course, to ensure that the parties leave the trial process feeling that they have had a fair hearing and that their evidence was heard and understood.

4. In this case, the judge did intervene too much as Patten LJ has explained. I would not wish to be over-critical in an environment where active trial management and a measure of judicial interventionism are acknowledged as appropriate tools to focus and streamline proceedings both interlocutory and at trial. It remains important, however, to allow relevant evidence to be presented and cross-examined without inappropriate interruptions.

5. Fortunately, the judge’s conduct did not, in this case, have the effect of preventing the defendants from fully and properly presenting their evidence, nor did it, in my judgment, impair his decision-making. The judge was obviously exercised about the defendants’ placing of the yellow bins and about the amount of money that the defendants may have been seeking for the sale of the roadway. I am not sure the judge descended in any relevant sense into the arena even on these points. He was entitled to raise a judicial eyebrow at what had occurred. As Patten LJ has also explained, he approached the issues that were relevant to the outcome in an appropriate and judicial manner.

6. I hope in future that judges will temper eagerness with restraint, because continuous interruptions during cross-examination can so often do more harm than good.