COURT OF APPEAL ALLOWED APPEAL BECAUSE OF PROCEDURAL UNFAIRNESS: INADEQUATE WITNESS STATEMENTS SHOULD NOT BE SUPPLEMENTED BY ADDITIONAL QUESTIONING: THE RIGHT TO CROSS-EXAMINE IS FUNDAMENTAL TO A FAIR HEARING

In Rea & Ors v Rea [2022] EWCA Civ 195 the Court of Appeal (hearing a 2nd tier appeal) overturned a decision of the trial judge and ordered a re-trial when the appellants had not been given an opportunity to properly cross-examine witnesses.  The judgment contains an important consideration of the role of the trial judge when litigants in person are involved.  More significantly the whole problem arose because of major inadequacies in the respondent’s witness statements.

 

“If the requirements of CPR 32.5(3) and (4) had been observed, the potential prejudice to the Appellants of allowing Rita to make good the deficiencies in her evidence and thereby pre-empting cross-examination would have been highlighted. In such circumstances, I cannot see that it would have been appropriate for the Deputy Master to give permission, but if for some reason he had, at very least he ought to have made it a condition that the gist of any further evidence to be given in chief should be communicated in writing to the Appellants in advance, and that they should have been given sufficient time to prepare their cross-examination properly.”

THE CASE

The case involved a dispute about the validity of a will.  The appellant defendants appeared at trial as litigants in person.  The claimant’s witnesses filed witness statements. However at the trial the claimant’s advocate asked numerous additional questions, as did the Deputy-Master hearing the trial.  Later on in the hearing the Deputy Master curtailed the defendants’ time for cross-examination of the claimant, on the grounds that this was going over “old ground”, overlooking the point that the additional questions had been asked by the claimant’s counsel. The Deputy Master found for the claimant. An initial appeal by the defendants was unsuccessful. The defendants’ appeal to the Court of Appeal was allowed.

THE GROUNDS FOR APPEAL IN THE COURT OF APPEAL

 

 

    1. The sole ground of appeal against the Deputy Master’s decision which was permitted by Nugee J (as he then was) was that the trial had been unfair by reason of the manner in which it was conducted. In his judgment on the first appeal, the Judge considered a number of respects in which it was alleged that the trial had been unfair to the Appellants, and rejected them all.

 

    1. On the second appeal to this court, Mr. Howard focussed on the decision by the Deputy Master to prevent David, who acted as the main advocate for the Appellants, from cross-examining Rita towards the end of the first day of the trial on the key issues of undue influence and fraudulent calumny. As I shall explain, the Deputy Master did so under the mistaken belief that the Appellants had already asked questions of Rita on those matters and that they should not be permitted to go over the same ground again. In fact, the questions to which the Deputy Master referred had been asked of Rita by her own counsel in an extended examination-in-chief.

 

  1. Mr. Howard contended that the Deputy Master’s decision deprived the Appellants of the only real way to obtain evidence and advance their case on undue influence and fraudulent calumny. He submitted that this was contrary to clear authority emphasising the importance in the adversarial system of the judge allowing the parties to put their case fully to opposing witnesses during the evidential phase of a trial, and that the prejudice that this caused was not rectified by the subsequent efforts of the Deputy Master to assist the Appellants.

 

THE WHOLE PROBLEM AROSE BECAUSE OF INADEQUATE WITNESS STATEMENTS

It is worthwhile pointing out that the major cause of this problem was inadequate witness evidence. The claimant’s counsel had asked numerous additional questions because the witness statements were inadequate.  It is surprising that the claimant was allowed to do this.  The appropriate course was for the claimant to seek permission, this was never done.

    1. After some further preliminaries, the trial commenced with Rita’s evidence. She had previously served two witness statements in 2016 and 2018, and in conventional fashion she confirmed the truth of those statements at the start of her evidence. However, instead of then being cross-examined by the Appellants, Rita was asked a very lengthy series of questions in chief by her own counsel, supplemented by questions from the Deputy Master. In all, those questions and answers cover some 26 pages of transcript.
  1. In the course of these exchanges, Rita was asked questions by Mr. Ward-Prowse that were plainly designed to give her the opportunity to answer the various allegations against her that had been raised by the Appellants in their pleadings and witness statements.

A SURPRISING DEVELOPMENT

It was quite clear that the supplemental questions were designed to fill gaps in the witness evidence.   It is surprising this was allowed.  The claimant required permission to do this, this was never sought.  The defendants were acting as litigants in person and probably not aware of the rule.

 

    1. Before us, Mr. Ward-Prowse very candidly told us that he had taken the course that he had in the interests of his client because the witness statements prepared for Rita by her solicitors had been inadequate and had not satisfactorily addressed the pleaded allegations against her. Nor had the solicitors acting for Rita sought permission to file supplemental witness statements responding to the evidence of the Appellants.

 

    1. Mr. Ward-Prowse also told us that he had overlooked the requirement to seek permission from the Deputy Master under CPR 32.5(3) and (4). That was regrettable. If the requirements of CPR 32.5(3) and (4) had been observed, the potential prejudice to the Appellants of allowing Rita to make good the deficiencies in her evidence and thereby pre-empting cross-examination would have been highlighted. In such circumstances, I cannot see that it would have been appropriate for the Deputy Master to give permission, but if for some reason he had, at very least he ought to have made it a condition that the gist of any further evidence to be given in chief should be communicated in writing to the Appellants in advance, and that they should have been given sufficient time to prepare their cross-examination properly.

 

    1. As it was, however, the examination-in-chief ranged far and wide and served to introduce a significant amount of new evidence from Rita. This included, for example, a handwritten letter from Mrs. Rea which was said to be relevant to Mrs. Rea’s command of the English language, and which David protested the Appellants had not previously seen. Rita gave evidence that she had found the letter among her mother’s possessions.

REFUSAL OF AN ADJOURNMENT

The defendants had now heard evidence that had not been in the claimant’s witness statement. They requested an adjournment to consider the matter. This was refused.  The Court of Appeal were critical of the decision not to allow the defendants this time. The claimant had (in breach of the rules) been allowed to adduce new evidence, the defendants were given a minimum amount of time to respond.

 

  1. When the examination-in-chief ended, the Appellants asked the Deputy Master for a 30 minute adjournment to discuss what Rita had said and to prepare some questions. The Deputy Master summarily refused that request, saying that he did not think it was necessary and that David’s brothers could pass him notes. He did, however, grant a five-minute break, commenting, “but by now you know everything about the case”. Although not relied upon by the Appellants as a free-standing ground of appeal before us, Mr. Howard (in my view justifiably) criticised this decision. In any event, for reasons that I shall explain below, I consider that it had certain consequences which are relevant for assessing whether the trial as a whole was unfair.

A MISTAKE AS TO WHO ASKED THE QUESTIONS

However the problems did not end there.  The Deputy Master then curtailed the defendants’ questioning of the claimant on the grounds that it was “going over old ground”.  Ignoring the fact that it was the claimant’s counsel who had, in fact, numerous additional questions.

Now, I do not want to go over old ground and I do not think it will necessarily help you to go round and round and round. But I am not going to permit questions that go over the old ground.”
    1. It is readily apparent that the Deputy Master’s intervention was based on the mistaken belief that it had been the Appellants who had asked the series of questions to which he referred. As I have indicated above, it is in fact clear that these questions had been asked by Mr. Ward-Prowse during his extended examination-in-chief.
    1. In passing I would observe that it is both surprising and unfortunate that when the Deputy Master made his ruling on the erroneous basis that the relevant questions had been asked by David, he was not corrected in that misapprehension, either by the Appellants themselves, or by Mr. Ward-Prowse. If that had occurred, a very different course of events would inevitably have followed.
    1. As it was, the Deputy Master’s ruling prompted David to ask for a 30 minute break, indicating that he did not feel well. The Deputy Master responded, however, that there would be no break and that they were going to sit and hear the matter until the end of the day. He then asked what topics the Appellants wished to cover. David responded that he wished to cover something that is recorded on the transcript as “want of knowledge” together with “coercion”. The Deputy Master then replied, “You have asked questions about all those matters, There is a risk of going over old ground”. David then asked for a 10 minute adjournment “to get our thoughts together”, which resulted in the Deputy Master ruling,
“You will have until 4.10pm to finalise what questions you are going to put to this witness and I will not have the court go round and round in circles on old ground. Any matters we have covered before we will not be covering again.”

THE APPEAL TO THE COURT OF APPEAL

The Court of Appeal allowed the appeal.
Analysis
    1. I accept Mr. Howard’s submission that the result of the Deputy Master’s error was that he prevented the Appellants from having the opportunity to cross-examine Rita to any meaningful extent on at least two of the central issues in the case – namely undue influence and fraudulent calumny. As Mr. Howard contended, cross-examination of Rita on the second of those issues was particularly important to the Appellants. By its nature, the alleged poisoning by Rita of Mrs. Rea’s mind against the Appellants prior to her decision to cut them out of her will was not something to which the doctor or solicitor could testify or upon which they could be cross-examined. Nor was there any written evidence supporting such a case. The Appellants’ only chance of proving that this had happened was therefore to undermine Rita’s evidence and credibility by a searching cross-examination. They were, however, denied that important opportunity. Mr. Ward-Prowse’s submission that the trial was nonetheless fair must be measured against that background.
    1. The first of the Judge’s two reasons, in paragraphs 103-105 of his judgment, was that in conducting his lengthy examination-in-chief of Rita, Mr. Ward-Prowse had been “seeking to assist the Defendants, by making sure that the key elements of their case had been put to Rita”. In reaching that view, the Judge manifestly did not have the advantage of Mr. Ward-Prowse’s candid admission to this court that this was not so. As Mr. Ward-Prowse told us, his real reason for seeking to conduct a lengthy examination-in-chief was not to assist the Appellants at all, but to remedy the deficiencies in his own client’s evidence. That explanation was, unfortunately, not given to the Judge, because Mr. Ward-Prowse did not appear on the first appeal, when Rita was represented by alternative counsel.
    1. I also do not consider that the Judge was right, in paragraph 105 of his judgment, to agree in any event with the Deputy Master’s view that “the questions” had already been asked and answered by Rita, and that there was very likely little to be gained, and from the Appellants’ point of view possibly something to be lost, in going over the same ground again. That view cannot be supported, for at least three reasons.
    1. The first is because it assumes that “the questions” that could have been asked in cross-examination would have been the same as those which had already been asked in examination-in-chief by Mr. Ward-Prowse. But this simply perpetuates the Deputy Master’s mistake in thinking that it was the Appellants who had already asked those questions and that they would simply be repeated.
    1. Second, there is a world of difference between the type of questions that can be asked in examination-in-chief and those that can be asked in cross-examination. An advocate cannot ask leading questions of his own witness in examination-in-chief, whereas a good cross-examiner will seek to ask a series of closed-end questions aimed at forcing the witness into making admissions, casting doubt upon the accuracy and reliability of the evidence and/or undermining the credibility of the witness: see e.g. Jones v National Coal Board [1957] 2 QB 55 (“Jones“) at 65 per Denning LJ.
    1. That distinction is evident in this case. The friendly and open-ended questions that Mr. Ward-Prowse asked of Rita in examination-in-chief (see e.g. paragraphs 22 and 23 above) were not remotely searching and certainly not the equivalent of the questions that might have been asked in cross-examination. That is hardly surprising: as Mr. Ward-Prowse told us, his questions were designed to assist Rita to make her case. They were certainly not designed to undermine or cast any doubt upon it.
    1. Third, the Deputy Master’s view of what might have been achieved by further cross-examination was undoubtedly coloured, at least in part, by his negative view of David’s earlier cross-examination of Rita. In that regard, I have very real doubts that the prejudice of denying a litigant the fundamental opportunity to cross-examine his opponent’s witness can be minimised or disregarded simply because the judge (or an appellate court) forms the view that such opportunity would not have been well-used because the litigant was not represented by, or had not shown himself to be, a good cross-examiner.
    1. But in this case, and picking up the point I made earlier, it should in any event be recalled that David had started his cross-examination of Rita under a substantial handicap. Rita’s case had not been properly set out in her witness statements, and David had only heard much of Rita’s evidence for the first time during her lengthy examination-in-chief. The Deputy Master had then only allowed him a five minute adjournment to consider that evidence and to formulate his questions. That situation would have been challenging even for an experienced trial advocate. It is not surprising that, as a LIP who had not appeared in court before, David struggled to conduct a properly structured or effective cross-examination of Rita before the lunch adjournment.
    1. I consider that there are also fundamental problems with the Judge’s second reason, expressed in paragraphs 106 and 107 of his judgment, that any unfairness to the Appellants had been remedied because the Deputy Master adopted what the Judge described as “an inquisitorial role” and “undertook a careful examination of Rita, designed precisely to ensure the [Appellants’] case was properly put to her”.
    1. The starting point for the analysis in this respect is that civil litigation in England is generally conducted on an adversarial basis by the opposing parties calling and cross-examining witnesses and making submissions to the judge, who sits to decide the case on the basis of the issues that the litigants have raised. It is not conducted by the judge on an inquisitorial basis. The fundamental importance of the right of a litigant to cross-examine an opponent’s witnesses in our adversarial system has been emphasised in many cases, and is the foundation for what has been termed the “core principle” that the judge should remain above the fray and neutral during the elicitation of the evidence by the parties: see Jones at 63 per Denning LJ, and Michel v The Queen [2009] UKPC 41 at paragraph 31 per Lord Brown. The cases have accordingly identified significant risks of unfairness when a judge departs from this general rule and intervenes in cross-examination or conducts an examination of the witness himself.
    1. There is, of course, a requirement for a party to “put” his factual case in cross-examination to the relevant witnesses for comment if he then wishes to invite the court to prefer his version of events rather than theirs: see Deepak Fertilizers & Petrochemical Ltd v Davy McKee (UK) London Limited [2002] EWCA Civ 1396 at paragraph 49,
“49. The general rule in adversarial proceedings, as between the parties, is that one party should not be entitled to impugn the evidence of another party’s witness if he has not asked appropriate questions enabling the witness to deal with the criticisms that are being made. This general rule is stated in Phipson on Evidence (15th Edition) at paragraph 11–26 in the following terms:

“As a rule a party should put to each of his opponent’s witnesses in turn so much of his own case as concerns that particular witness … If he asks no questions he will generally be taken to accept the witness’s account and will not be permitted to attack it in his final speech. …””

    1. That requirement rests upon the litigant, and paragraph 72 of the ETBB specifically deals with how the judge might ensure that a LIP complies with such obligation,
“72. LIPs may not understand the importance of “putting” their key points to the other side’s witnesses. It is often appropriate to help them do this, rather than hold it against them later that they have failed to do so.”
    1. This is, to my mind, what the Deputy Master was (quite properly) seeking to do when asking Rita questions after David had indicated that he had no more questions to ask. As the Deputy Master explained,
“DEPUTY MASTER ARKUSH: You see, you are absolutely entitled to put your case and indeed, not entitled, but bound, to put your case to this witness, all right?
MR REA: Yeah.
DEPUTY MASTER ARKUSH: So, I am going to ask a few questions, which will help you do that … On things that you might not have fully covered yet, all right?”
    1. Again, however, there is a world of difference between a judge taking steps to assist a LIP to comply, as a minimum, with the requirement to “put” his case to a witness for comment if he wishes to maintain his case to the contrary (on the one hand); and an effective cross-examination which is designed to extract admissions and cast doubt upon the accuracy, reliability and credibility of the witness’s evidence (on the other).
    1. That distinction is evident in the questions which the Deputy Master asked Rita to which I have referred above. They were phrased simply to allow her to comment and were, in reality, no more searching than those which Rita had been asked by her own counsel. So, for example, as set out in paragraphs 39-42 above, the Deputy Master did not pursue the Appellants’ real point about the use of the word abandon in the text messages that Rita had sent to Nino, and his questions putting the various allegations to Rita were open-ended, or leading, or simply allowed her to provide short denials. They were, in short, not a remotely adequate substitute for the opportunity to cross-examine Rita of which the Appellants had been deprived by the Deputy Master’s earlier error.
    1. There is, I should say, nothing very surprising about that conclusion. Indeed, it would have been far more surprising if the Deputy Master had actually taken it upon himself to conduct a substitute cross-examination of Rita on behalf of the Appellants.
    1. I say that, first, because the Deputy Master was, of course, not aware that he had wrongly prevented the Appellants from cross-examining Rita: he mistakenly thought that the Appellants already had done so. There was, therefore, no reason for him to think that he had to go out of his way to make up for that.
    1. Second, such a course would have carried a very real risk that the Deputy Master’s neutrality and objectivity would have been compromised if he had actively descended into the fray on behalf of the Appellants. The problems of taking such a course are clearly set out in the authorities. For example, in Yuill v Yuill [1945] P 15 at 20, Lord Greene MR stated (in a passage subsequently endorsed by Denning LJ in Jones at page 64),
“A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation…”
    1. Lord Wilson also summed up succinctly the additional problems that arise where one party is unrepresented in Serafin v Malkiewicz [2020] 1 WLR 2455 at paragraph 46,
“Every judge will have experienced difficulty at trial in divining the line between helping the litigant in person to the extent necessary for the adequate articulation of his case, on the one hand, and becoming his advocate, on the other.”
    1. The risks for a judge in going beyond the basic requirement to assist a LIP to put his case to the witnesses are well-known, and it is significant that the Deputy Master gave no indication that he thought he was embarking upon such a risky course.
    1. In paragraph 107 of his judgment, the Judge thought that the Deputy Master was following paragraph 65 of the ETBB, and was “seeking to assist [the Appellants] by being flexible and adopting an inquisitorial role”. As I have just indicated, I do not think that is what the Deputy Master was in fact doing. Moreover, I am very far from convinced that it would have been appropriate for the Deputy Master to have adopted an inquisitorial role, or that this is what paragraph 65 of the ETBB encourages judges to do in any event in cases involving a LIP.
    1. The starting point when one party is unrepresented is CPR 3.1A. This provides, in CPR 3.1A(4), that the court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective. CPR 3.1A (5) then provides,
“(5) At any hearing where the court is taking evidence this may include-
(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and
(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”
    1. This rule clearly authorises a judge to put questions to a witness, but this is plainly not the only option, and there is no suggestion that a judge should do so on a free-range basis, acting as a quasi-advocate for the LIP. The structure of CPR 3.1A(5) envisages that the judge might ask questions of a witness, but after having ascertained from the LIP what evidence the LIP is endeavouring to elicit from the witness or what point he is seeking to make. It is also open to the judge to cause appropriate questions to be put to the witness, for example by asking the advocate for the represented party to do so, rather than the judge descending into the fray and doing so himself.
    1. The caution inherent in CPR 3.1A(5) is also reflected in the authorities. In Drysdale v Department of Transport [2014] EWCA Civ 1083 at paragraph 49, Barling J observed that the appropriate level of assistance that a court or tribunal can give to a LIP must be constrained by the overriding requirement that the court must be, and be seen to be, impartial as between the parties, and that injustice to either side must be avoided. The particular difficulties for a judge of maintaining such neutrality and distance whilst asking questions were also commented upon by Asplin LJ in Global Corporate Limited v Hale [2018] EWCA Civ 2618 at paragraph 27,
“27. A trial judge is perfectly entitled to ask a party or other witness to clarify the answers he or she has given in evidence and it is often important to do so. Where a party is unrepresented, as a matter of fairness both to the unrepresented party and the other party or parties to the litigation, it may also be both appropriate and necessary to ask questions in order fully to understand the unrepresented party’s case as pleaded, their submissions and their evidence. In doing so, the judge should take care not to ask leading questions of the unrepresented party in his capacity as a witness. It may even be necessary to ask questions of other witnesses about matters central to the issues in the case which have not been posed by the unrepresented party in cross-examination. Such questioning should be approached with caution and limited to essential matters…. It is very important that whilst seeking to clarify the issues and the evidence and to be fair to all parties the trial judge does not stray from the case as pleaded and the evidence before the court.”
    1. Against that background, it seems to me that the directly relevant paragraphs of the ETBB in relation to the assistance that a judge can give to a LIP in relation to cross-examination are paragraphs 68-72 which appear under the heading “Advocacy”,
“68. If a LIP does not know where to start in cross-examining an opposing witness, it may be helpful to suggest they prepare by reading through the latter’s witness statement and marking the parts of evidence he or she does not agree with.
69. When trying to cross-examine opposition witnesses, litigants in person often phrase questions wrongly or ask several questions in one sentence, and some find it hard not to make a statement or launch into their own evidence.
70. Explain that once you understand the point they are getting at, you can assist them to put it in question form.
71. LIPs frequently have difficulty in understanding that merely because there is a version of events being presented that is different from their own, this does not necessarily mean that the other side is lying. Similarly, they may construe any suggestion from the other side that their own version is not accurate as an accusation of lying. Be ready to explain that this is not automatically so.
72. LIPs may not understand the importance of “putting” their key points to the other side’s witnesses. It is often appropriate to help them do this, rather than hold it against them later that they have failed to do so. The significance of a LIP failing to put a point is likely to be less than a lawyer failing to put a point….”
    1. Those paragraphs envisage that a judge might assist a LIP by, for example, reformulating the LIP’s questions once the judge has understood the point they are trying to make. But they do not remotely suggest that a judge in a civil case should adopt an inquisitorial role or conduct a cross-examination of a witness in place of the LIP doing so.
    1. Nor do I consider that this is what paragraph 65 of the ETBB envisages. That paragraph appears in an earlier section of the ETBB headed “Introductory explanations by the judge”. It is preceded by a number of other paragraphs dealing with how the judge should approach the start of a hearing, identifying the basic roles of the various participants and the procedure to be followed. Although the Judge extracted and relied on some of the words in paragraph 65, it is important to have regard to the whole to put those words into context. Paragraph 65 states,
“65. It can be hard to strike the due balance when assisting a LIP in an adversarial system.  LIPs may easily get the impression that the judge does not pay sufficient attention to them or their case, especially if the other side is represented and the judge asks the advocate on the other side to summarise the issues between the parties. Consider:
  • Explaining the judge’s role during the hearing.
  • If doing something which might be perceived to be unfair or controversial in the mind of the LIP, explain precisely what you are doing and why.
  • Adopting to the extent necessary an inquisitorial role to enable the LIP fully to present their case, (though not in such a way as to appear to give the litigant in person an undue advantage).”
    1. As I read paragraph 65, the suggestion in the last sub-paragraph to which the Judge referred is actually offered as one of the ways in which a judge might avoid a perception on the part of the LIP that the judge is not paying sufficient attention to the LIP’s case, “especially if the other side is represented and the judge asks the advocate on the other side to summarise the issues between the parties.” In that context, the suggestion that the judge might adopt an inquisitorial role can be understood as a suggestion that the judge might actively question the LIP during the openings at the start of the trial, as a means of teasing out what the LIP’s case really is. But this has nothing to do with the judge acting as an inquisitor of witnesses during the subsequent evidential phase of a trial.
    1. That point is reinforced by considering other areas of the law in which it might be necessary for a judge to adopt an inquisitorial role at the evidential stage of proceedings. Such areas include, for example, cases in the family courts where parties are often unrepresented, and where there are serious and sensitive issues to be addressed at fact-finding hearings, sometimes requiring the examination of vulnerable witnesses. The difficulties inherent in the judge taking an active role in such cases were discussed by Dyson MR in Re K and another (Children) [2015] 1 WLR 3801 and by Hayden J in S v P (unrepresented party: cross-examination) [2018] EWHC 1987 (Fam) [2018] 4 WLR 119. The cases show that it is possible for a judge to adopt the role of questioner during an evidential hearing, but where that is necessary there are detailed procedures to be followed. These may, for example, require the LIP to submit in advance and in writing the questions that he wishes to see asked, and the holding of a separate “ground rules hearing” (GRH) at which the judge considers the suitability of those questions, if necessary conferring with the LIP to establish the key points that they wish to see explored with the witness.
    1. The contrast between the brief wording of paragraph 65 of the ETBB and the complexities of such procedures for the protection of all concerned simply underlines that paragraph 65 is most unlikely to be encouraging judges to adopt an inquisitorial role at the evidential phase of ordinary civil trials.
    1. Finally, and very much in passing, I note that the Judge also placed reliance in paragraphs 109 and 110 of his judgment on the fact that the Deputy Master gave the Appellants the opportunity to ask further questions arising out of his questions, and that the Appellants thanked the Deputy Master for his assistance. I do not think, however, that such limited opportunity could fairly be understood as an invitation to the Appellants to go back and restart the cross-examination that they had earlier been prevented in clear terms from carrying out. The Appellants were also being commendably polite in thanking the Deputy Master who had, as I have indicated, been trying to assist them in certain respects. But that politeness cannot sensibly be taken as a clear acknowledgment by the Appellants that the adverse consequences of the Deputy Master’s earlier decision had been remedied.
Conclusion
    1. For these reasons I conclude that the error by the Deputy Master in preventing cross-examination caused serious prejudice to the Appellants, which was not remedied by anything else which occurred at the trial. In my judgment, the trial was therefore unfair to the Appellants and the appeal must be allowed.
    1. The result is that the matter will have to be remitted to the High Court for a retrial. Without making any observations whatever on the merits, that is a most unfortunate result. Quite apart from the emotional stress for the parties of a retrial, when added to the irrecoverable costs incurred to date, the further irrecoverable legal costs which will inevitably be incurred will only serve to reduce the limited benefits available from Mrs. Rea’s estate for the successful party or parties. The consequences for the loser(s) will inevitably be much worse.
  1. I would, therefore, strongly urge the parties to these proceedings to do everything possible to reach a consensual settlement of their differences rather than fight out a retrial. In particular, serious consideration ought to be given to mediation. In that regard, if the parties request it, I see no reason why this court cannot, as part of the exercise of its power to order a new trial pursuant to CPR 52.20(2)(c), direct that such trial should not take place for a specified period, and stay the proceedings in the interim to enable such mediation to occur.