Judges should 'think twice' before halting cross-examinations
Appeal judges warn that advocates may have better grasp of forensic realities
Judges should 'think twice' before halting cross-examinations by advocates, particularly if they respond by standing their ground, Lord Justice Munby has said.
Munby LJ said judges, even in family cases, should stop 'irrelevant or time-wasting' cross-examinations.
However, he said they should always bear in mind that, however carefully they have read the papers, counsel is 'likely to have a better grasp of the inner forensic realities' of the case.
Munby LJ went on: 'And a judge has to think twice if, as here, counsel's reasons have obviously been carefully considered and are not just 'off the cuff'.'
Delivering the leading judgment In the Matter of J [2012] EWCA Civ 1231, he congratulated counsel for 'politely but firmly standing her ground and telling the recorder plainly that his ruling was preventing her putting her client's case'.
Munby LJ added: 'It is a pity that the recorder did not, even at that point, see any reason to change his mind.'
The court heard that Mr Recorder Bryan was sitting at Southend County Court, hearing an application by the mother of a nine-year-old boy for a sole residence order.
The mother represented herself and the father was represented by Martha Holmes of 1 King's Bench Walk. The recorder ordered that the existing residence order should be discharged and the boy should reside with his mother.
The father appealed, arguing that the recorder had restricted questioning of the mother, preventing the father from putting his case.
According to a transcript of the hearing, at one point Recorder Bryan asked Holmes whether she wanted the witness to 'rake over all her earlier concerns and worries' and advised her that the court wanted to 'move forward rather than to linger'.
Holmes persisted, saying the mother was demanding a 'vast reduction' in the level of contact. 'I'm trying to get to the bottom of why she feels that is necessary.'
Recorder Bryan replied: 'Well let me reassure you, you are not going to gain any mileage from this line of cross-examination and I am interested in looking forward and with that in mind do you have any further questions?'
Later, when Holmes said she would be hampered from putting her client's cases if she could not explore the mother's allegations, the recorder replied: 'Well that may be but it seems to me we are where we are.'
Lord Justice Munby allowed the father's appeal. Lord Justices Maurice Kay and Lewison agreed.