REUTERS | Dominic Ebenbichler

Court of Appeal considers judge’s excessive witness questioning

A few years ago I wrote a post on whether adjudicators should act judicially, which looked at a talk by Lord Hamilton, who was then the president of the Scottish Court of Session. Lord Hamilton posited the question, “What has acting judicially to do with adjudicators?”, and I considered a number of the judicial values that he referred to, concluding that I hoped that all adjudicators had something of those values in mind whenever they accepted an adjudication appointment.

This post came to mind when I was reading the Court of Appeal’s judgment in Shaw v Grouby, where one of the defendants’ grounds of appeal was related to whether, because of the way the judge conducted the trial, it had been fair. It all boiled down to whether the judge’s interventions with witnesses meant he was “entering the arena”, which cast doubt over his objectivity and impartiality, and raised the prospect of the witnesses being unable to fairly put their evidence before the court.

Shaw v Groudby

This case concerned a neighbour dispute related to a right of way over a driveway and whether a boundary wall the claimant had built was trespassing on the defendants’ property. It was heard in Bristol County Court and involved detailed evidence from factual and expert witnesses over several days.

The detail of the judge’s findings are not relevant to this post, but how he conducted the trial is. Because of those findings, the Court of Appeal had to look at the evidence relevant to the location of the boundary wall and then the right of way. In both instances it agreed with the trial judge’s findings and dismissed the defendants’ appeal. Then it turned to the question of how the judge had conducted the trial and whether it was fair.

Procedural fairness

What caught my eye was the way the Court of Appeal approached the trial judge’s behaviour and the parallels that can be drawn with other dispute resolution forums, especially adjudication.

Patten LJ started by looking at the principles underlying how a judge should conduct a case and referred to the judgment in Southwark LBC v Kofi-AduIn that case, the judge had also persistently interrupted events and had even suggested to counsel that there was no point in cross-examining witnesses. Needless to say, the Court of Appeal found the trial judge there had failed to “discharge his judicial function”. However, it wasn’t so much the decisions that the judge had made, more the way he reached them, such that he didn’t just descend into the arena, but once there, he played a “substantial part in the interrogation of the witnesses”, which was effectively a quasi-inquisitorial role.

In Jones v National Coal Board [1957] 2 QB 55, Lord Denning had referred to the judge’s role as being to:

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

In Southwark, it seems the judge was a little too inquisitorial. However, not so in Shaw, just.

In Shaw, Patten LJ reached this conclusion after detailed examination of the trial transcripts. He noted that some of the judge’s exchanges had been with counsel, rather than the witnesses, so perhaps it wasn’t quite so extreme as in Southwark, where the court noted that one witness could be:

“… forgiven for feeling that she was facing two simultaneous cross-examiners in the person of counsel and the judge.”

In fact, in Shaw, the trial judge regularly apologised for being “over-eager to get to grips with the case”, which demonstrates that he clearly rolled-up his sleeves and got stuck in with gusto. For example:

“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.”

Interventions with experts

Interestingly, Patten LJ’s approach to the trial judge’s interventions with the expert witnesses appears to be a little softer. While he may have “subjected them to prolonged periods of questioning”, he said that “in the age of hot-tubbing”, this was to be expected. The trial judge didn’t go so far as to be bullying them.

Excessive but not unfair

Patten LJ concluded that the trial judge’s interventions were excessive but were not unfair. He recognised that the interventions must have been frustrating for the parties and suggested that the judge should have postponed his questioning until after counsel had conducted his cross-examination, unless it was necessary to clarify an answer so the judge could better understand the evidence being given. A helpful tip indeed.

The Chancellor of the High Court, Vos LJ, agreed with Patten LJ, but also took the opportunity to add a few of his own thoughts. He recommended judicial restraint, not least to ensure that the parties left:

“… the trial process feeling that they have had a fair hearing and that their evidence was heard and understood.”

He added that he 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.”

He concluded that the trial judge did not descend into the arena, rather he approached the issues in an appropriate and judicial manner (even if he did raise a judicial eyebrow at some of the things the defendants had done).

Parallels with adjudication

It is all thought provoking stuff.

Rule 13 of the Scheme for Construction Contracts 1998 gives an adjudicator the power to:

“… take the initiative in ascertaining the facts and the law necessary to determine the dispute.”

In exercising this power, an adjudicator can do a number of things, including meeting and questioning the parties and their representatives. I’d like to think that when I do this, I do not lose my ability to “evaluate and weigh the evidence”, nor that I am guilty of descending into the arena. After all, I am an adjudicator not a gladiator!

MCMS Ltd Matt Molloy

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