Newey: Judge risked debilitating the cross-examination
A judge who interrupted a claimant 52 times during cross-examination acted inappropriately, the Court of Appeal has held.
It accepted that Insolvency and Companies Court Judge Jones, sitting as a High Court judge, had been trying to help the claimant but said he went too far.
Judge Jones had upheld the claim of Gary Keane become a partner in alternative legal services provider Document Risk Solutions Ltd, but the appeal court overturned him, saying there was “no evidence” to support his conclusion.
Another ground of appeal had been that the trial was unfair because the judge intervened too much when Mr Keane was giving oral evidence.
The Court of Appeal nonetheless addressed it, noting how the courts “have repeatedly warned” against this.
“On the other hand, excessive interventions by the judge during oral evidence will not necessarily render a trial unfair.”
Giving the main judgment, Lord Justice Newey said it was plain from the transcript “not only that the judge was courteous, but that he was concerned to ensure that Mr Keane understood [the defendants’ counsel] Ms Anderson’s questions and had a fair opportunity to answer them.
“Even so, looked at in the round, it does seem to me that the judge interrupted more often than was appropriate.”
Newey LJ highlighted one exchange where Judge Jones’s intervention “will not merely have given Mr Keane ‘valuable time for thought’ (to use words of Denning LJ), but pointed him to where he might find an answer to Ms Anderson’s question”.
He continued: “It seems to me that it was inappropriate for the judge to intervene in this way and thereby to run the risk of debilitating the cross-examination. This intervention and the questions asked by the judge in the passage that followed also risked clouding his ability properly to weigh and evaluate the evidence.”
Another comment made by Judge Jones both prevented Ms Anderson from asking a legitimate question “and in all probability provided Mr Keane with reassurance as to how his evidence was being received and, hence, made Ms Anderson’s task generally harder”.
But Newey LJ concluded that the interventions did not make the trial unfair – they neither prevented the defendants from fully presenting their case at trial nor impaired the judge’s decision-making.
In a brief comment, Sir Geoffrey Vos, Master of the Rolls, agreed that the judge’s actions were inappropriate.
“My reading of many of the interruptions is that the judge was, perhaps inadvertently, but certainly inappropriately, protecting the witness. I also agree that ultimately the trial was not rendered unfair, but that is only because Mr Keane had almost no detailed recollection of what had occurred and that is what the judge found.
“That finding has formed a key part of our decision that the judge’s reconstruction of the facts cannot be sustained on the evidence.”
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