The minefield of how judges deal with litigants in person has been highlighted with a case in which all three appeal judges criticised how the issue was handled in a High Court case.
In Global Corporate Ltd v Hale, appeal judges each said His Honour Judge Matthews had gone too far in showing the court was dealing with both parties fairly, where one had been unrepresented.
Lord Justice Patten quoted long sections of the judge’s cross-examination of the defendant, a director facing a claim for repayment of dividends, describing most of the questions as ‘highly leading’ and suggesting that the judge persisted even when Hale responded negatively.
Patten LJ emphasised that a trial judge was perfectly entitled to ask a party or other witness to clarify answers given during evidence, but these limits had been exceeded in this case.
‘The judge’s ultimate finding was based upon a new line of cross-examination introduced by the judge himself for which there was no existing evidential basis. None of this, in my view, is at all satisfactory.’
In a supporting judgment, Lord Justice Coulson said the nature and extent of the judge’s questions of Hale at the end of his cross-examination were ‘inappropriate’.
The judge was required to maintain a fair balance, said Coulson LJ, but the use of leading questions and his raising issues for the first time ‘went too far in attempting to counter any perceived imbalance or inequality of arms'.
Lady Justice Asplin said trial judges should take care not to ask leading questions of an unrepresented party in his capacity as a witness. She added: ‘It is very important that whilst seeking to clarify the issues and the evidence and to be fair to all parties the trial judge does not stray from the case as pleaded and the evidence before the court.’
The claimant had sought to recover £23,511 received by Hale from a liquidated company where he had been director and shareholder. Hale had denied the dividends had been paid out unlawfully and said the pay structure adopted by directors was a more tax efficient way of dealing with remuneration and was honestly recorded in company accounts.
The trial judge had dismissed the claim to recover the money, but Global Corporate’s appeal was allowed.