Court of Appeal warns judges against interrupting witness evidence too much

Vos: Judicial self-restraint is required

The Chancellor of the High Court has urged judges to “temper eagerness with restraint” in the way they conduct trials, after a circuit judge was found to have made excessive interventions while witnesses were giving evidence.

However, while warning that “continuous interruptions during cross-examination can so often do more harm than good”, Lord Justice Vos agreed that HH Judge McCahill QC in Bristol had not impaired his decision-making in doing so.

Shaw v Grouby & Anor [2017] EWCA Civ 233 was an appeal over a boundary and right of way dispute between neighbours. In addition to the legal issues, the defendants claimed there had been procedural unfairness due to the way Judge McCahill had conducted the trial.

The defendants did not allege bias but said his 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, and that as a result they were deprived of the opportunity properly to put forward their case.”

The key case law is the 2006 Court of Appeal ruling in Southwark LBC v Kofi-Adu, in which Lord Justice Jonathan Parker said: “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.”

Giving the ruling of the two-judge court in Shaw, Lord Justice Patten said 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”.

He added: “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.”

However, saying it would “unfair” to compare Judge McCahill’s conduct with that set out in Kofi-Adu, he concluded that there was still a fair trial and a proper judicial determination of the main issues.

His 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”.

The fact that Judge McCahill subjected the experts to prolonged periods of questioning “is to be expected nowadays in the age of hot-tubbing although it obviously has its limits”.

“Although I recognise that many of the judge’s interventions may have been frustrating, I do not therefore consider that the judge’s conduct made the trial unfair in the sense described in Kofi-Adu.

“He did not prevent Mr Auld from cross-examining the claimant’s witnesses. The factual and expert evidence necessary for the determination of the two property issues was not seriously in dispute and the judge’s decisions on the construction of the 1999 transfer were correct for the reasons given earlier.”

Lord Justice Vos added that the trial process “can be distorted if the judge intervenes too much”.

He said: “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.

“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.

“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…

“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.”

Last month, in McBride v UK Insurance Ltd (Rev 1) [2017] EWCA Civ 144, Lord Justice Flaux recorded that the trial judge, in the case about credit hire rates “clearly had a sense of anger and frustration about the fact that, despite having been given ample time following case management directions, the parties had not settled the dispute and about what he saw as inefficiency by the solicitors on both sides”.

He continued: “However, his conduct of the hearing was not judicial: he went beyond being robust, and was hectoring and offensive and expressed views about credit hire and the insurance industry generally that he would have been better keeping to himself…

“My firm view is that, despite his intemperate comments, he did not show any actual or apparent bias against the claimant or in favour of the defendant. It might be said that he was even-handedly offensive.”

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