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||Neutral Citation Number:  EWCA Civ 1431
||Case No: B2/2011/0855
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
MR RECORDER BALDWIN QC
||Royal Courts of Justice
Strand, London, WC2A 2LL
||9 November 2012
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE MUNBY
LORD JUSTICE LEWISON
|| ABDUL HADI JEMALDEEN
||- and -
||A-Z LAW SOLICITORS
Mr Islam Chowdhary (instructed by A-Z Law Solicitors) for the appellant
Mr Yosef Serugo-Lugo (instructed by A Hadi Jemaldeen) for the respondent
Hearing date : 18 July 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Munby :
- Mr Recorder Baldwin QC was trying a claim and counterclaim in the Central London County Court. It was a dispute between two solicitors.
- The claimant, Mr Abdul Hadi Jemaldeen, referred to throughout as Mr Hadi, was employed by the defendant firm, A-Z Law Solicitors, of which the principal was a Mr Khan, to assist in undertaking professional work for the firm in accordance with a written agreement dated 18 April 2006. The precise nature of the employment is neither here nor there. There was an issue between the parties as to what the agreement meant. So far as material for present purposes, the Recorder held that it required the firm to pay Mr Hadi, once it had received the money either from the client or from the relevant public authority, one half of the fees received by the firm for any work done by Mr Hadi, net of VAT and disbursements. There is no longer any challenge to the Recorder's ruling on this point. Permission to appeal on the point was refused both by Sir Richard Buxton on the papers and, on renewal, by Patten LJ.
- That issue out of the way, the forensic task facing the Recorder was – or ought to have been – comparatively simple. There was a factual dispute between the parties as to whether Mr Hadi's employment by the firm had been brought to an end, as he alleged, by summary dismissal on 1 March 2007, or whether, as the firm alleged, because he had repudiated the agreement by walking out, his last day in the office being 13 March 2007 and the repudiation having been accepted by the firm on 14 March 2007. There was a factual dispute as to whether Mr Hadi had been negligent, as alleged in the firm's counterclaim. The only other issues went to quantum: the first related to the amount of the sums payable by the firm to Mr Hadi in accordance with the agreement, which were hotly disputed; the other to the amount of the damages payable by one or other party to the other depending in part on how the agreement had been brought to an end and in part on whether the firm could establish its counterclaim for alleged negligence.
- In fact the Recorder's task seems to have been made more difficult because of two things. The documents relevant to the counterclaim and the documents and schedules relevant to the quantification of Mr Hadi's share of the fees seem to have been presented to the Recorder in a less satisfactory state than might have been hoped. The Recorder recites in his judgment that he had not been shown any of the core documents nor the relevant files. And there were, for instance, four Scott Schedules where it might be thought that one would not merely have sufficed but been much more useful. At the same time it is apparent, both from the partial transcript we have seen and from his judgment, that in a number of respects the Recorder felt that he had not received as much assistance from counsel as he might have expected. Both parties, it may be noted, were represented by experienced counsel. Mr Hadi was represented by Mr Yosef Serugo-Lugo, who had been called in 1973. The firm was represented by Professor William Rees, also called in 1973.
- I must develop the latter point in due course. Here I merely draw attention to the fact that the Recorder commented repeatedly in his judgment (see paragraphs 6, 9, 10, 16, 17, 19. 29, 30 and 38), and on the face of it with every justification, about Professor Rees' failure to put documents to the witnesses, in particular Mr Hadi, notwithstanding that, as the Recorder had been told, the relevant files and documents were in court. In the light of what is now being said, it is interesting to see how the Recorder dealt with Professor Rees' explanations for this state of affairs:
"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."
- Following a four day trial, the Recorder delivered judgment on 10 March 2011. In relation to the issue of the termination of the agreement he found for Mr Hadi, awarding him damages of £1,200 representing his assessment of what Mr Hadi would have earned if, instead of being summarily dismissed, he had been given one month's notice in accordance with the agreement. He dismissed the counterclaim. He quantified the unpaid fees in the sum of £13,643.92. Interest was ordered to run from 1 June 2007. The firm was ordered to pay Mr Hadi's summarily assessed costs in the sum of £22,000. To put that figure in context, I record without comment that the firm's costs apparently amounted to £91,000.
- It is convenient to note at this point the Recorder's contrasting appraisals of the two main protagonists – he had of course heard also from a number of other witnesses. He noted that Mr Hadi had been subject to what he called aggressive cross-examination, during the course of which Mr Hadi's honesty, integrity and professional competence had been strongly challenged. Having carefully analysed the eight reasons why, as Professor Rees submitted, Mr Hadi was a dishonest and evasive witness, the Recorder found him to be "an honest witness trying to assist the court." The Recorder said, "I thought he was doing his best to assist me."
- Mr Khan, on the other hand, he found to be not a very helpful witness, frequently refusing to answer the questions put, argumentative and aggressive, and more concerned with urging upon the court the correctness of his position than answering questions. There had been an issue as to whether or not Mr Khan had complied with an order of the court relating to inspection of documents. The Recorder found that he had not:
"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.
- The firm sought to appeal. Although Professor Rees was quick to seek permission from the Recorder to appeal against his order as to costs – which the Recorder refused – no application was made to the Recorder for permission to appeal against his substantive judgment. Sir Richard Buxton's observations on this when refusing permission are apposite
"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."
- As originally presented to this court the application for permission was in a most unsatisfactory shape, as Sir Richard Buxton appropriately observed. The proposed grounds of appeal as prepared by Professor Rees ran to no fewer than 27 pages and were, as Sir Richard put it, "in a completely unsatisfactory form." They included serious allegations against the Recorder, including allegations of bias. The only transcript provided was that of the Recorder's judgment. Entirely unsurprisingly, on 28 July 2011 Sir Richard refused permission.
- The application was renewed. It was supported by a lengthy witness statement dated 29 October 2011 by Professor Rees, who by then had ceased to act for the firm, and entirely recast grounds of appeal, numbered 1-17, dated 7 November 2011. Transcripts were provided of the evidence of Mr Hadi on 7 and 8 March 2011 and of Mr Khan on 8 and 9 March 2011. On 11 November 2011 Patten LJ gave permission to appeal on grounds 1-5 and 7-9. He refused permission on the other grounds.
- It was in these circumstances that the appeal came on for hearing before us on 18 July 2012. The appellant firm was represented by Mr Islam Chowdhary. Mr Hadi, the respondent, was represented, as below, by Mr Serugo-Lugo.
- The grounds of appeal fall into two groups. One, which it will be convenient to consider first, relates to the Recorder's finding on the issue of termination (grounds 7-9). The other (grounds 1-5) relates to complaints of what are characterised as the Recorder's bias, partiality and unequal treatment of the parties, including allegations that he interrupted and intervened excessively.
- In relation to the termination issue the Recorder was faced with inconsistencies in the firm's pleaded case, some differences in the account given by Mr Khan in the course of his evidence and a stark conflict of evidence between Mr Khan and Mr Hadi. In addition to the oral evidence of the protagonists there was the undisputed fact that on 5 or 6 March 2007 Mr Hadi had attended the Crown Court on behalf of one of the firm's clients. There were also a few letters. One, a letter written by Mr Khan to a client of the firm on 7 March 2007, illustrates how little assistance the Recorder was able to obtain from any objectively verifiable material. For the letter refers to Mr Hadi as "leaving this firm shortly", which is consistent neither with Mr Hadi's case that he had been summarily dismissed on 1 March 2007 let alone with the firm's case that he repudiated the agreement later that month. How after all, as Mr Serugo-Lugo points out, could Mr Khan have known before the event that Mr Hadi would shortly be repudiating the agreement? As the Recorder said in his judgment, the letter is "quite inconsistent" with the firm's case that Mr Hadi's repudiation was accepted on 14 March 2007.
- Mr Hadi's explanation for his attendance at the Crown Court was that, although he had been dismissed, he felt he had a professional responsibility as a solicitor to attend court to satisfy himself that the client was appropriately represented. Having ascertained that the client was indeed represented, he left. The Recorder, as he was entitled to, accepted Mr Hadi's evidence on this point and, as he was also entitled to, found it not inconsistent with Mr Hadi's case of prior dismissal.
- The central thrust of the firm's case before us was that the Recorder's findings on this issue are simply irreconcilable with three contemporaneous documents: an attendance note in Mr Hadi's handwriting of a conference he had with a client, Mr G, on 2 March 2007; an attendance note, again in Mr Hadi's handwriting, of a telephone conversation he had with the Legal Services Commission in respect of another client, Mr O, on 8 March 2007; and an extract of what is said to be the firm's attendance register showing Mr Hadi as having visited the firm's offices on 1, 2, 5, 6, 7, 8, 12 and 13 March 2007. It is not asserted that any of these documents were put to Mr Hadi. Indeed, both the transcript of his evidence and the Recorder's judgment are silent as to them. In my judgment none of this material was so destructive of Mr Hadi's case as to vitiate the Recorder's decision in his favour. And in any event, why should Mr Hadi's case now be challenged for the first time on appeal on a point that could, and, if it could, should, have been taken at trial but was not?
- Various other points were taken by Mr Chowdhary in support of the firm's appeal on this point. None of them, in my judgment, takes the matter any further. In large measure they amount to little more than an attempt to re-argue before us a variety of points arising from the conflicting evidence of Mr Hadi and Mr Khan.
- The appeal on this point must, in my judgment, be dismissed.
- I turn to the core of the appeal: the attack on the Recorder's conduct during the trial. As set out in the amended grounds of appeal and developed by Mr Chowdhary in his skeleton argument and orally, the firm's complaints can be summarised as follows:
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.
- In support of his case of bias, Mr Chowdhary invites us to apply the law as laid down by the House of Lords in Magill v Porter UKHL 67,  2 AC 357. For present purposes it suffices to refer to what Lord Hope of Craighead said (para ):
"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."
- In support of his case in relation to interruption Mr Chowdhary relies upon the classic judgment of Denning LJ giving the judgment of the court (Denning, Romer and Parker LJJ) in Jones v National Coal Board  2 QB 55.
- Ordinary civil proceedings in this country – it is well recognised that family proceedings are very different – are adversarial not inquisitorial. The duty of the judge is to hear and determine the issues raised by the parties as set out in the pleadings. But, as Denning LJ observed (page 63), the judge
"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".
- In pursuit of that fundamental objective the judge is not required to sit silent as the sphinx. Appropriate intervention while a witness is giving evidence, even while the witness is being cross-examined, is not merely permissible but may be vital. As Denning LJ put it (page 63):
"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".
- So there is nothing objectionable, for example, in a judge intervening from time to time to make sure that he has understood what the witness is saying, to clear up points that have been left obscure, to make sure that he has correctly understood the technical detail, to see that the advocates behave themselves, to protect a witness from misleading or harassing questions, or to move the trial along at an appropriate pace by excluding irrelevancies and discouraging repetition. Indeed, it is, as Denning LJ recognised (page 65) his duty to do so.
- But there is, of course, a difficult and delicate balance to be held. The judge must not, as it is often put, descend into the arena. Denning LJ referred (page 63) to Lord Greene MR, who in Yuill v Yuill  P 15, 20, had:
"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."
- The dangers of inappropriate intervention are particularly acute during cross-examination. As Denning LJ explained (page 65):
"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)."
- Jones was a case involving a fatal accident in a coal mine where the plaintiff was represented by Mr Mars-Jones, as he then was, and the defendant by Mr Edmund Davies QC, as he then was. The judge intervened far too much, indeed, so much that each party complained that they had not been able to put their case properly. For example (page 62), in the case of one witness the judge:
"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."
- At the end of the day, the question for us comes down to this. Adopting what Denning LJ said in Jones (page 61): Was justice done between these parties? Were the facts properly found by the judge on a fair trial between the parties? As he added (page 67):
"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."
- I have dealt with Jones at some length because it remains the classic statement of principle, because it is an illuminating illustration of where the line is properly to be drawn between appropriate and inappropriate intervention and, not least, because it stands in striking contrast to what the transcripts reveal in the case before us.
- I turn to consider the various grounds of complaint.
- First, excessive interruption and intervention during Professor Rees's cross-examination. We have been taken to many passages in the transcript. I have read and re-read the whole of the transcript. The particular passages to which attention is drawn must be assessed in the light of the transcript read as a whole. My conclusion at the end of the day, but without hesitation, is that this ground of appeal is not made out. There was a significant amount of intervention by the Recorder but it does not give rise to any proper ground of complaint. The Recorder, in my judgment, stayed well within the boundaries described in Jones. His interventions were justified – many of them, it has to be said, because of the way in which Professor Rees was conducting the case. He did not descend into the arena. In contrast to what happened in Jones, he did not at any time take over the examination or cross-examination of the witness, nor, I emphasise, is there anything in the transcript which even begins to suggest that Professor Rees was not able to put his case properly. On the contrary, as we have seen, one of the Recorder's concerns was that Professor Rees was failing to do so, and not, I emphasise, because the Recorder was preventing him.
- I do not propose to catalogue all the specific passages of which complaint is made, but I should illustrate the points I have just made.
- Many of the Recorder's interventions were, as it seems to me, justified by the way in which Professor Rees was conducting the cross-examination.
- On occasions the Recorder had, perfectly properly in my judgment, to intervene in order to protect the witness from being interrupted before he could complete his answer. THE RECORDER: "Please do not interrupt the witness. I am trying to take a note of his evidence … If you come in and stop him speaking I cannot do that." The following day "Do not interrupt him." "I put a question, your Honour, and he has not answered it." "And he was giving an answer and I was taking a note of it and you interrupted in mid sentence." "Yes, because he has not answered the question I put." "Can you wait until he has at least finished a sentence."
- On another occasion the Recorder intervened to point out to Professor Rees that "You cannot ask this witness what assists me surely."
"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.
- At one stage the Recorder intervened, perfectly properly, to point out to Professor Rees that if he was going to challenge Mr MA's evidence on a particular point, the challenge should have put to him rather than now being put to Mr Hadi. This led to a discussion between Professor Rees and the Recorder, in the course of which Professor Rees said "But why does he [meaning Mr Hadi] claim fees?", to which the Recorder responded, "Because Mr MA has come along and said "The only person at this firm who did any work for me was you", ie, the claimant. The claimant then sees that the defendant has billed £2,300 for his work and says "Res ipsa loquitur, I want half of that" – very straightforward." That is said to be the Recorder making out Mr Hadi's case for him. I do not agree. The Recorder was merely summarising the effect of the evidence already given by Mr Hadi.
- Complaint is made that on occasions the Recorder himself answered the questions being put to the witness or by his intervention caused the witness to change his answer. One example arose out of this interchange between the Recorder and Mr Hadi following questions Professor Rees had been putting to him about meetings with the firm in March 2007:
"Q: You are saying that there was no meeting on the 13th March?
A: No, no meetings.
Q: None whatsoever?
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?
I can see nothing objectionable in that. The Recorder was clarifying what the witness was saying.
- At one point during his cross-examination Mr Hadi said that "more than 90 per cent of the work was complete".
"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.
- Complaint is made that on two separate occasions some ten pages of transcript are taken up with questions from the Recorder. But it is important to note that this was not all questioning by the Recorder of the witness; much of it was dialogue between the Recorder and Professor Rees. The first example is illuminating.
- Mr Hadi had conducted a case in the Crown Court for a client called IO. Mr Hadi claimed the sum of £2,135.85. Two issues arose: the first because one document (H212) showed the amount paid to the firm by the Crown Court as amounting to £5,019.24 (which was not twice the amount claimed by Mr Hadi; it was fact rather more), and the other because a second document (H214) showed a figure of £538.23. The first issue was a non-point. Document H212 shows that the total figure of £5,019.24 included VAT of £747.55; the net amount of £4.271.69 is precisely double the sum of £2,135.85 claimed by Mr Hadi. In relation to the second issue the point was that the document showing the figure of £538.23 had apparently been prepared by the firm and not by Mr Hadi.
- The "vast discrepancy" between the figures of £2.135 and £538.23 was put to Mr Hadi by Professor Rees. Professor Rees interrupted Mr Hadi part way through his answer. The Recorder said "Just a second, you are interrupting now" and then, to the witness, "The Crown Court cost was what you were saying?" Mr Hadi replied "Your Honour, I claimed half of what Mr Khan received in the Crown Court claim, and that is why I have claimed this figure." The Recorder, "You have claimed £2.315." Mr Hadi, "Yes." A discussion then ensued between the Recorder and Professor Rees in which the Recorder explained the reconciliation between the figures of £2,315 and £5,019. The discussion then turned to the fact that document H214 was not Mr Hadi's document, a fact that Mr Hadi confirmed in answer to further questions from Professor Rees. The Recorder then sought clarification from Professor Rees about the figures in document H214, which it is clear the Recorder needed in order to be able to understand the nature of the firm's case and follow the line of cross-examination. Professor Rees was seemingly in difficulties providing that clarification even after taking instructions. In my judgment, the Recorder was entitled to intervene and to ask Professor Rees these perfectly appropriate questions about a document, prepared by the firm, which was being put to Mr Hadi in cross-examination.
- Towards the end of this sequence there is a revealing interchange:
"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 …"
- On the second of these two occasions the Recorder's interruptions arose in the context of various documents being put to Mr Hadi. The Recorder's interventions, as I read the transcript, were directed to ensuring that he, and the witness, were clear as to what the documents were and who had produced them. There was also debate as to whether some of the documents had been properly disclosed. Again I can see nothing objectionable in what happened.
- I turn to consider the next ground of appeal, bias and partiality. This is broken down into four complaints. There is, in my judgment, no substance whatever in any of them.
- First, giving greater leeway to Mr Serugo-Lugo than to Professor Rees. There is, in my judgment, nothing in this complaint. It was not a question of the Recorder giving one counsel more leeway than the other. Rather it was a case where the Recorder legitimately felt that he had more occasion to intervene with the one than the other. That is not bias or partiality. As Balcombe LJ once expressed it (Bahai v Rashidian and Another  1 WLR 1337, 1346), "A judge properly exercising his judicial function, e.g., by criticising the conduct of a party's solicitor in the course of his judgment on a matter which he considers relevant to his decision, cannot by that process be said to be biased. Bias is the antithesis of the proper exercise of a judicial function." Here, the Recorder was merely performing his judicial functions in what he plainly felt, and I accept, was an entirely proper fashion.
- The second complaint is that the Recorder 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. We have been taken through the relevant parts of the transcript, and it is easy to see why the Recorder refused to interpose the witness, a Mr P, during Mr Hadi's cross-examination.
- What happened was this. Out of the blue, and at about 3.45 in the afternoon, Professor Rees interrupted his cross-examination of Mr Hadi to ask if Mr P could be interposed, because he was apparently not available for the rest of the week. Mr Serugo-Lugo said that he was likely to be a long witness, and explained why. Professor Rees said that his evidence would be pretty short, five or ten minutes. Unsurprisingly the Recorder responded: "How can you possibly say that? … I have just been told by counsel who is going to cross-examine him that it is going to take a long time." The Recorder then observed, without correction, that he had asked at the beginning of the day for a schedule of witnesses and had not been told until now that Mr P could come only that day. The Recorder ruled:
"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.
- The third complaint is that the Recorder accepted Mr Hadi's evasive answers during cross-examination whilst being quick to criticise the firm. It links in with the fourth complaint, that the Recorder made various gratuitous comments about both the firm and Mr Khan. As to the first part of this, I cannot accept the premise which underlies the complaint. The Recorder carefully considered the relative credibility and veracity of both Mr Hadi and Mr Khan. He set out and explained his conclusions. The fact that his findings on this central issue were heavily in favour of Mr Hadi and adverse to Mr Khan is no basis for any complaint of bias. The Recorder, as it seems to me, was fully entitled to come to his conclusions and for the reasons he gave. It is part of the judicial function to decide such issues and part of a judge's duty to explain his conclusions and to do so, where justified by the evidence, in appropriately strong language. There is not the beginning of any proper basis of complaint.
- There are one or two comments by the Recorder which I can accept might perhaps have been better left unsaid. For example, "Is this another example of Mr Khan not using language in the way most people use it?" and, in relation to disclosure, "Anyway, your clients seem not to think that is important, but let us not interrupt your cross-examination any longer with matters like that." But that is far indeed from saying that there was here any appearance of bias or partiality. There was not.
- Complaint is also made that the Recorder adopted a different approach in his responses to the introduction by each side of various without prejudice letters, restricting his adverse comments to the firm. The criticism in my judgment is misplaced, as can be seen by the Recorder's comment to Professor Rees – "it is bit rich for you to criticise [Mr Hadi] for doing exactly the same [as your solicitors]".
- The next ground of appeal is that 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. There is, in my judgment, no basis for this complaint. I repeat what I have already said. I cannot see anything in the transcript which even begins to suggest that Professor Rees was not able to put his case properly. The fact is that, on this, as on other matters, he did not. But there is simply no warrant for the attempt to shuffle off responsibility on to the Recorder. I note that at the end of his cross-examination of Mr Hadi the transcript records Professor Rees as saying "I am happy to leave my cross-examination there."
- I have, of course, carefully considered all the arguments which Mr Chowdhary has deployed so skilfully before us, and all the passages in the transcripts to which he has drawn our attention. But none of this material, whether considered in its component parts or in combination, begins to make good any of his grounds of appeal. Stepping back from all the detail and looking at everything in the round, it is quite apparent that both parties – both Mr Hadi and the firm – had the fair trial to which each was entitled. This case is far removed from Jones. The Recorder behaved entirely properly. There is no warrant for the criticisms made of him, least of all, I emphasise, the allegations of apparent bias or partiality. It is a pity that such allegations were ever made.
Lord Justice Lewison :
- I agree. There are only two points that I would like to add. The first is that one of the changes in civil litigation since 1957, when Jones v National Coal Board was decided, is that more attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court's resources to any individual case: CPR Part 1.1. An advocate can no longer expect to have unlimited time in which to conduct his cross-examination. The second is that when a trial judge does overstep the mark, even in family cases, this court will intervene. Lord Justice Munby's judgment in Re J (A child)  EWCA Civ 1231 is a recent example. But on the facts of this case, as Lord Justice Munby has demonstrated, the Recorder's interventions were both justified and, for the most part, necessary in order to keep the trial on its proper track. I too would dismiss the appeal.
Lord Justice Moore-Bick :
- I agree with both judgments.
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