The finding of fact hearing that was the subject of a recent appeal in Re G (A Child)  EWCA Civ 834 puts into perspective what advocates (and indeed judges) may count as a “bad day at the office”.
The facts are in many ways irrelevant, but to give a little context: this was a private law dispute, in which the mother made allegations of domestic abuse, out of control gambling and inadequate childcare against the father and the father, in turn, made allegations of problematic alcohol use, coaching the child to make false allegations and inadequate childcare against the mother.
The finding of fact hearing came before HHJ Pearl for 3 days starting on Monday 28 October 2013. Both parents were represented by counsel – Ms Toch was for the mother, Mr Cameron for the father. The judge made some findings but she did not find either party’s main allegations proved. The mother appealed on the basis that the case was “tainted by numerous instances of prejudice and bias on the part of the trial judge.” Now, this is not an unusual allegation to be made by a party whose case has not found favour with the judge. In most instances there is little foundation for such views and the lawyer’s challenge is to find a tactful, yet persuasive, way of explaining this to the lay client. Not so in this case, where – remarkably – the mother’s appeal succeeded. Here is why:
There had been severe storms over the weekend of 26-27 October 2013 and public transport services were disrupted well into Monday 28 October 2013. It was for this reason that things got off to a bad start for the mother’s counsel, Ms Toch.
She, despite her best efforts, did not arrive at court until 12.20pm for a hearing that was due to start at 11.45am. Ms Toch apologised for her lateness, and explained about the limitations of public transport and the steps she had taken to get to court. History does not relate why HHJ Pearl may have taken the approach she did, but she was disproportionately troubled by Ms Toch’s lateness – to a point where Black LJ found that she “laboured the issue of Ms Toch’s lateness to the point of unwarranted, unfair criticism”. Rather reassuringly, Black LJ acknowledged that: “My experience is that counsel tend to manage to be on time for court against even formidable odds but sometimes it simply is not possible.”
Unfortunately for Ms Toch and the mother, HHJ Pearl’s displeasure did not end there. In discussing the witness template, HHJ Pearl repeatedly challenged Ms Toch as to whether she wanted the CAFCASS officer to give oral evidence and, in the words of Black LJ, the judge did not accept Ms Toch’s “clear statement […] that she did not want to cross examine the CAFCASS officer and was content for him not to be called, even though that had been reiterated by Ms Toch”. The Court of Appeal having had the benefit not only of a full transcript of the entire finding of fact hearing (one shudders to think to how many pages that must have run), but also of the recording, Black LJ was able to confirm: “What is not apparent from the transcript is the judge’s tone of voice. I need only say that listening to the recording did nothing to improve the impression gained from the written word.”
As if this were not already enough of a tale of woe, HHJ Pearl then went on to take an approach to Ms Toch’s cross-examination of the father that Black LJ described as follows:
“My assessment is that on this second day the judge’s interventions were such that they largely prevented Ms Toch’s cross-examination from getting off the ground or at least significantly hampered its progress and also took up a disproportionate amount of the limited time available to Ms Toch. They may also have undermined Ms Toch with the witness, diluting her questioning not only by interrupting its flow but also by leading the father to anticipate that it may be declared by the judge to be without proper foundation. This was a case in which, as the judge herself observed, the credibility of the parties was particularly material. Cross-examination was therefore of central importance in enabling the judge to make reliable findings of fact on their respective allegations. The judge’s interventions were such that I am unable to be sure that the father’s evidence was tested as was required.”
Black LJ observed that Mr Cameron was not free from interventions of the time management variety or from criticism as to the nature of his questioning. So, it seems everyone was having a hard time of it. Crucially, however, Black LJ was very clear that two wrongs do not make a right and “the fact that the judge intervened excessively in the questioning of both counsel would not make the process fair or provide reassurance that the findings that resulted were reliable.”
Black LJ was at pains to record that she was conscious that the one person the Court of Appeal had not heard from was HHJ Pearl and that she would, no doubt, have had much to say. She said she had made allowances for the need to manage hearings robustly and had thought long and hard about which side of the line of fairness the hearing in this case fell. However, in the end it was a necessary result of the conclusions Black LJ reached that the findings of fact had to be set aside and the case remitted for directions before a different judge.
What, then, do we take from this – hopefully exceptional – case?
Two points perhaps:
The first is captured in the following quote from the judgment:
“Managing a trial can be challenging, even for an experienced judge, and it is sometimes necessary to react without much time for refined consideration. Generous allowance always has to be made for this and also for the fact that, even with counsel’s help, it is very difficult to tell from a transcript, or even from listening to a recording, precisely what was going on at all stages during the hearing. Furthermore, different judges have different styles and counsel and litigants can usually be expected to cope with the talkative, the uncommunicative, the robust, and even the irritated judge, provided the judge’s behaviour does not stray outside acceptable limits.”
So, cases like this, where an appeal succeeds on the basis of unfairness in the judge’s conduct of the hearing, will no doubt remain rare.
However – and this is the second takeaway point – where the judge does stray outside the limits of acceptable behaviour a “careful and cogently written judgment cannot redeem a hearing in which the judge had intervened to the extent […] of prejudicing the exploration of the evidence.”
Finally, to end on a practical note, if you are tempted to appeal on a similar basis, a full transcript and a copy of the recording is absolutely essential.