Judge’s Inappropriate Inquisitorial Role

The fundamental right of a litigant to cross-examine an opponent’s witnesses has been emphasised in many cases.  It is the foundation of the core principle that the judge should remain above the fray and neutral during the elicitation of the evidence by the parties.

Significant risks of unfairness have been identified when a judge departs from the general rule and intervenes in cross-examination or conducts an examination of the witness himself.

In this country civil litigation is conducted adversarially with 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 inquisitorially.

The Court of Appeal emphasised these points when allowing a second appeal from a High Court Judge who had upheld a decision of a Deputy Master: Rea & Ors v Rea [2022] EWCA Civ 195 Lewison, Newey, Snowden LJJ

There was a world of difference between a judge taking steps to assist a litigant in person (LIP) to comply, as a minimum, with the requirement to put his case to a witness for comment if he wished to maintain his case to the contrary (on the one hand); and an effective cross-examination which was designed to extract admissions and cast doubt upon the accuracy, reliability and credibility of the witness’s evidence (on the other).

The Deputy Master fell into error by preventing the appellants from having the opportunity to cross-examine a witness to any meaningful extent on at least two of the central issues in the case, that is to say, undue influence and fraudulent calumny.

Counsel for the respondent had been permitted to conduct a lengthy examination-in-chief of the respondent in order to remedy deficiencies in his own client’s evidence.

The Deputy Master considered that these questions had been asked and answered and there was very likely to be gained by the appellants going over the same ground again in cross-examination.

That view could not be supported for three reasons.  The first was that it assumed 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.

Secondly, there was a world of difference between the type of open questions that could be asked in examination-in-chief and the leading questions an advocate could not ask of his own witness.  A good cross-examiner would 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.

Thirdly, there was very real doubt that the prejudice of denying a litigant the fundamental opportunity to cross-examine his opponent’s witness could be minimised or disregarded simply because the judge formed 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.

There were fundamental problems with the Judge’s reason that any unfairness to the appellants had been remedied because the Deputy Master adopted what the Judge described as an “inquisitorial role”.

The Judge thought that the Deputy Master was following paragraph 65 of the Equal Treatment Bench Book (ETBB) by being flexible and adopting an inquisitorial role. The Court was far from convinced that it would have been appropriate for the Deputy Master to have adopted an inquisitorial role or that this is what para.65 of the ETBB encouraged judges to do.

Paragraphs 68-72 of the ETBB envisaged that a judge might assist a LIP by, for example, reformulating the LIP’s questions once the judge had understood the point they were trying to make. But they did 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.

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 and the trial was unfair.