OVER-LISTING HAS CONSEQUENCES : (SO DOES TALKING OVER YOUR OPPONENT): HEARINGS SHOULD NOT BECOME A “SHOUTING MATCH”

There is a page on this blog where I am attempting to collate problems with listing (across all jurisdictions).  The judgment reported today in  A v R & Anor (Appeal of Summary Determination) [2018] EWHC 521 provides a reminder that listing issues can give rise to substantive problems. It is also provides a warning to advocates about the dangers of interrupting your opponents.

“The requirement for submissions to be made in a clearly defined order aims to ensure that each party has a fair opportunity to present their case on the issues that are before the court for determination. A failure by advocates to assist the court in adhering to this requirement is corrosive of that aim. In this case, the reception by the court of properly sequenced submissions was rendered extremely difficult by a concerning tendency on the part of the advocates simply to interrupt each other in an effort to advance their competing submissions. It should go without saying that this mode of advocacy does not assist the court and is to be deprecated.”

THE CASE

The father was appealing an order made in respect of his daughter.   The hearing was initially listed in front of a District Judge and then transferred to the Circuit Judge.  The Circuit Judge took up the case in the afternoon. This meant that limited time was available.

OBSERVATIONS AS TO LISTING (AND INTERRUPTIONS)

The High Court judge stated:

1. 1. As I have noted, the final hearing on 28 November 2017 did not initially commence in front of the learned judge on 28 November 2017, but rather in front of District Judge Abigail Smith. The reason for this appears to have been that, whilst the learned Judge had reserved the matter to himself, he was very heavily listed on the day in question and the matter had therefore been placed in District Judge Smith’s list. The matter remained before the District Judge for approximately half an hour. During that time the parties made substantive submissions on the adequacy of Mr Clowry’s report and the proper course of action in respect of the report. The District Judge having expressed “severe concerns” regarding the report of Mr Clowry, counsel for the father, Ms Sarah Cooper, proceeded to make submissions in support of the continued need for expert evidence, a course opposed on behalf of the mother by Mr Persson and on behalf of T by Ms Topping.

   2. It is a noteworthy feature of the transcript of the hearing before the District Judge that, as was to become a feature of the transcript of the hearing before the learned Judge, counsel constantly interrupted each other. Ms Cooper’s submissions on the fate of Mr Clowry’s report were interrupted by Mr Persson, without demur from the District Judge. Mr Persson was in turn interrupted by Ms Topping, again without judicial demur. Indeed, at times the transcript appears to show simply an argument between counsel with no input from the District Judge. This conduct continued until the District Judge decided that enquiries should be made as to whether the learned Judge could take the case. The net result of the way this part of the hearing was conducted meant that no party ever got to the point of concluding a complete, focused and structured submission on any issue.

   3. The learned Judge agreed to take the matter and proceeded to hear the case, which had been given a three-hour time estimate, at 2.20pm. As I have noted, in summary the father’s first ground of appeal includes the complaint that the learned Judge had not properly prepared for the hearing. The father also complained before me that the Judge appeared, from his initial comments, to have reached a settled judgment from the outset. The opening statements of the learned Judge, who had had long involvement with this case, form the basis of the father’s contentions in this regard:

“His Honour Judge Scarratt: Yes well, I’m sorry you’ve had a bit of wait. The fact of the matter was this morning I had a one-day case with five applications and this three-hour hearing.

Miss Cooper: Yes.

His Honour Judge Scarratt: And so District Judge Abigail Smith’s diary emptied yesterday and I’m afraid this happens. Cases are moved about. Not ideal but as it happens I have finished my five applications and given judgment so I’m, I’m now free to deal this but you’ve really got limited time because I have to be at a meeting at 4 o’clock. I’ve got bundles here, I’ve not looked at them –

THE APPEAL

The father, who appealed as a litigant in person, appealed arguing that the judge had not prepared the case properly. This was not accepted on appeal.   However the appeal was allowed and re-listed before a judge of the Family Division.

SYMPATHY FOR THE CIRCUIT JUDGE

1. In allowing the appeal, it is difficult not to have a good deal of sympathy for the learned Judge. He sought to assist the parties by taking the matter at short notice into an already busy list after the final hearing had already commenced before a different judge. Having done so, the learned Judge tried to further assist the parties by attempting to cut through a protracted dispute between two parents in what, on any estimation, was a long running case involving a young person with her own strongly held views about the way forward.

COUNSEL SHOULD STOP INTERRUPTING EACH OTHER

1. Within this context, I make one additional observation. As I have already pointed up, the transcript of the hearing demonstrates that the learned Judge was not assisted in his difficult task by the approach of the advocates in this case. Both the transcript of the hearing before the District Judge, and the transcript of the hearing before His Honour Judge Scarratt, record each of the advocates, although counsel for the father a good deal less so, regularly interrupting each other. The net effect of that approach was that, as I have observed, neither judge received properly structured submissions, in the proper order on the points that were in issue between the parties, and no issue was ever fully run to ground. It is quite clear from the transcript why the father chose to describe the hearing as having descended into a “shouting match”.

2. I am satisfied that this unfortunate situation before the learned Judge materially contributed to the primary reason this appeal has been successful, namely that, before making a final child arrangements order, the learned Judge did not hear submissions on the key issues before the court at the final hearing of the need for a final child arrangements order and the appropriate level of contact between father and daughter if such an order were made.

3. FPR r 12.21, deals with the order in which a court hears submissions or evidence at a hearing and confers on the court a discretion in that regard. FPR r 12.21 reflects the fact that properly sequenced submissions constitute a vital constituent of a fair hearing. The requirement for submissions to be made in a clearly defined order aims to ensure that each party has a fair opportunity to present their case on the issues that are before the court for determination. A failure by advocates to assist the court in adhering to this requirement is corrosive of that aim. In this case, the reception by the court of properly sequenced submissions was rendered extremely difficult by a concerning tendency on the part of the advocates simply to interrupt each other in an effort to advance their competing submissions. It should go without saying that this mode of advocacy does not assist the court and is to be deprecated.