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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hadi v A-Z Law Solicitors [2012] EWCA Civ 1431 (09 November 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/1431.html Cite as: [2012] EWCA Civ 1431 |
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ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
MR RECORDER BALDWIN QC
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MUNBY
and
LORD JUSTICE LEWISON
____________________
ABDUL HADI JEMALDEEN |
Respondent |
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- and - |
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A-Z LAW SOLICITORS |
Appellant |
____________________
Mr Yosef Serugo-Lugo (instructed by A Hadi Jemaldeen) for the respondent
Hearing date : 18 July 2012
____________________
Crown Copyright ©
Lord Justice Munby :
"Professor Rees said that the reason he had not put any of the files to Mr Hadi was because of what he called proportionality and the fact that the trial would have taken too long had he done so. This was a four day trial … I reject this assertion so made. The plain fact is that some of the files could have been put well within the time allowed. Ample time, in my judgment, was given for the cross-examination of Mr Hadi and quite little extra time would have been incurred by showing him a few files so that he could have commented upon them."
Later in his judgment the Recorder commented that, more than once in closing submissions, Professor Rees had said that he did not put the files to Mr Hadi "because of time constraints":
"As I have already said, I reject this as a good explanation. He could easily have put some of the files to Mr Hadi to illustrate quality points, had there been points to make which were as glaring as the defendant claimed."
"Mr Khan's conduct in refusing to comply with the order of the court and making up excuses as to why he did not, some of which were patently false, is typical in my judgment of his attitude to this case and to his evidence as a whole."
I should add that, as the Recorder set out in his judgment, Professor Rees accepted that Mr Khan's conduct in this respect was "indefensible" though, he submitted, an "isolated incident", a characterisation which, as the Recorder made clear, he was not prepared to accept.
"It might be easier to take a clearer view of the litany of complaints about the judge's conduct of the trial if they had been put to him in an application for permission to appeal, and he had thus been given an opportunity to comment at least in general terms. The reasons for not taking that course … are unpersuasive."
i) The Recorder interrupted and intervened excessively during Professor Rees's cross-examination in particular of Mr Hadi, in a way which prevented counsel developing his cross-examination as he would have wished and effectively disabled him from putting his client's case properly to the court. On occasions the Recorder himself answered the questions being put to the witness.
ii) The Recorder displayed bias and partiality against the firm and treated the parties unequally. It is said that he:
a) gave much greater leeway to Mr Serugo-Lugo than to Professor Rees;
b) permitted Mr Hadi's witnesses to be interposed while Mr Khan was giving evidence whilst refusing to permit one of the firm's witnesses to be interposed during Mr Hadi's evidence;
c) accepted Mr Hadi's evasive answers during cross-examination whilst being quick to criticise the firm; and
d) made various gratuitous comments about both the firm and Mr Khan.
iii) Had the Recorder been "patient" with him, Professor Rees would have been able to develop the firm's case in relation to Mr Hadi's alleged repudiation of the agreement by putting the three documents I have already referred to.
iv) In consequence, the firm was denied a fair trial.
Particulars of these allegations were set out in Mr Chowdhary's skeleton argument and in a helpful schedule he prepared for us.
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
"is not a mere umpire to answer the question "How's that?" His object, above all, is to find out the truth, and to do justice according to law".
"No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence, he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries."
He continued (page 64):
"The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate".
"explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict".
Denning LJ continued (page 64) that it is for the advocate to make his case;
"as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost."
"Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness's evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness's evidence can be properly tested, and it loses much of its effectiveness in counsel's hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return (emphasis added)."
"took the examination of the witness out of the hands of leading counsel for the rest of that day and of his junior counsel next morning. Mr Mars-Jones then cross-examined the witness; but during the cross-examination the judge intervened on several occasions to protect the witness from what he thought was a misleading question, and to bring out points in favour of the witness's point of view."
And again (page 63):
"the judge took the examination-in-chief largely out of the hands of Mr Edmund Davies … Mr Mars-Jones cross-examined the witness, but after a while the judge disclosed much impatience with him and he brought it to a close."
A retrial was ordered, Denning LJ having commented (page 65) that "It seems to us that the case was conducted by counsel on both sides with complete propriety."
"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge."
"PROFESSOR REES: I can put it him. He is a solicitor of the Supreme Court and he is also the claimant in the case.
THE RECORDER: I do not care what he thinks will assist me, that is a matter for me."
The Recorder, in my judgment, was right.
"Q: You are saying that there was no meeting on the 13th March?
A: No, no meetings.
Q: None whatsoever?
A: No.
Q: That is your evidence?
THE RECORDER: Well, it cannot be none whatsoever because you told me that on the 6th March there was a meeting when Mr Lodhi dismissed you.
A: Yes, but warning me in the way the Professor described, Mr Khan never …
Q: So there was no warning meetings; that is what you mean?
A: No."
I can see nothing objectionable in that. The Recorder was clarifying what the witness was saying.
"THE RECORDER: Is it 90 per cent of the files were complete or most of the files were …
A: Yes, 90 per cent of the files were complete, your Honour.
Q: Most of the files were 90 per cent complete.
A: Ninety per cent of the files were complete, your Honour."
This is criticised as an inappropriate intervention which caused the witness to change his answer. I do not agree. It was a perfectly proper intervention by a judge seeking to make sure that he had correctly understood the witness. The same can be said of many other interventions of which similar complaint is made.
"THE RECORDER: I am interrupting your cross-examination.
PROFESSOR REES: No, it is very welcome, your Honour.
THE RECORDER: You had better ask the questions you want to ask.
PROFESSOR REES: Okay. Thank you, your Honour. But it is helpful to have these interventions, if I may say so, because ultimately your Honour has to decide this case and …
THE RECORDER: Well, if you put a document in which nobody has opened on, the witness has never see before, it is fairer for him and for me to try and work out what this document is supposed to be telling us all.
PROFESSOR REES: Absolutely, yes …"
"If you announce at ten to four that you have got a witness who you introduce for the first time this morning and you say he can come only today then I am afraid I am going to say that it is not possible for him to be heard today because we are in the middle of something that is quite contentious with this witness and you have just sprung it upon us and it is not possible I am afraid."
I find it utterly unsurprising that the Recorder should have ruled as he did and for the reasons he gave. The allegation that this was because of bias or partiality is, in my judgment, utterly groundless.
Lord Justice Lewison :
Lord Justice Moore-Bick :