THE ART OF CROSS-EXAMINATION: A JUDGE’S GUIDE: “STOP WHEN YOU GET WHAT YOU WANT”

The judgment in  of Mrs Justice Cockerill in King & Ors v Stiefel & Ors [2021] EWHC 1045 (Comm) is a long and complex one.   The case is worth reading because of the principles it sets out for pleading a case.  Another aspect of the judgment may be unusual in that it contains citations from several books on advocacy.

“STOP WHEN YOU GET WHAT YOU WANT”

THE CASE

The claimants were bringing actions against 10 defendants.  The claimants had discontinued earlier proceedings and brought these proceedings against certain of the defendants in the original proceedings and their lawyers, alleging unlawful means conspiracy.

CROSS-EXAMINATION CONSIDERED

It was said that leading counsel’s failure to “exploit” failings in the evidence pointed to a conspiracy.  The judge was having none of this.

1. 1. One matter which was said to be very significant in the inference that threats had been made was the fact that Mr Downes did not exploit with any witness the fact that the pleadings and witness statements signed with Statements of Truth were all wrong as a result of the B Share Problem. This was said to be evidence of Primekings keeping to their side of the nefarious understanding and to justify the inference.

1. 1. This is a point which I would entirely understand being made by a litigant in person, because it completely fails to understand the techniques of cross-examination. It is however rather strange to find it pursued with any enthusiasm by counsel. It is often thought by non-lawyers that good cross-examination consist of confronting the witness repeatedly and “rubbing his nose” in every discrepancy. A good cross examiner will however usually aim to get the good answer she wants for the purposes of closing submissions and move swiftly on before the witness can start to dig himself out of the hole.

1. 1. As Keith Evans says in “The Golden Rules of Advocacy” p. 102:

 “STOP WHEN YOU GET WHAT YOU WANT….Don’t indulge yourself. If you do, things may start to go horribly wrong”

1. 1. Or, to quote Sir David Napley in his classic work “The Technique of Persuasion” p. 113:

“If .. you have elicited from the witness – or a different witness – an admission which assists your case, do not, in your understandable enthusiasm, put the same or similar question again; you may well get a different answer which nullifies the good which your earlier answer achieved.”

1. What one sees Mr Downes doing on the transcript is simply him following this golden rule. I therefore fail to see how this could provide any basis at all for an inference of impropriety.”