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N3: Tribunal conduct

Asking questions during submissions is encouraged 

 

“on the whole the English tradition sanctions and even encourages a measure of disclosure by the judge of his current thinking. It certainly does not sanction the premature expression of factual conclusions or anything which may prematurely indicate a closed mind. But a judge does not act amiss if, in relation to some feature of a party’s case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be.” (Arab Monetary Fund v. Hashim (1993) 6 Admin LR 348 at 356, Sir Thomas Bingham MR); 

 

Tribunal interventions should not prevent a party making their case 

 

“…I have reviewed the transcripts of the hearing and I am somewhat surprised by the scale of the judge’s interruptions. He plainly felt strongly that he had suggested a sensible short cut to the proceedings that HMRC’s counsel was unwilling to adopt. But, once it had become clear that HMRC wanted to argue the case it had come to court to present, the fact that the judge’s own proposal had not been accepted was no justification for preventing HMRC presenting their case in a concise and coherent way as I am sure Ms Harman was attempting to do. To put the matter shortly, it would have been better, I think, if the judge had let her get on with it.” (Changtel Solutions UK Ltd v. HMRC [2015] EWCA Civ 29, §70). 
 

High standing of the Special Commissioners 

 

“The very high standing which the special commissioners have earned for themselves and their ability to deal with cases of the greatest complexity is not in issue here.” (Autologic Holdings plc v. HMRC [2005] UKHL 54, §60, Lord Hope)

High standing of the Special Commissioners 
Asking questions during submissions is encouraged 

Judge may ask whether a party intends to run a particular case but may not indicate that they should


“It will be noted that the amendment in this case was provoked by the judge's observations. It is, I think, difficult for a judge to give indications to any party about how to conduct the case without seeming to be partisan, but it can be done. But if a judge is going to give an indication of any kind he must leave it entirely to the parties as to whether they wish to follow up on his indication. The judge was thus entitled to ask whether the respondent proposed to run any new case following the hearing of the evidence. I bear in mind, as I have said, we do not have a transcript of precisely what the judge said, but I have no doubt that he would have been going beyond his function if he had suggested in any way that a particular case was a case which the respondent ought to run. That would have been, as is sometimes put, to descend into the arena. The judge must remain outside the arena in order to conduct the trial impartially.” (Hayer v. Hayer [2012] EWCA Civ 257, §37, Arden LJ)

Judge may ask whether a party intends to run a particular case but may not indicate that they should

Forceful/colourful language is injudicious 

 

“…he is evidently a man who expresses himself forcefully. He seems to invite criticism by repeatedly using extravagant qualifying adjectives…And this is just his use of adjectives. He did not like the appellants’ case…and he said so in no uncertain terms. His language was colourful…I feel bound to observe that his language and a few of his comments during the course of the hearing…were ‘injudicious’.” (GSM Export  (UK) Ltd v. HMRC [2014] UKUT 0529 (TCC), §160, Proudman J). 

Unfair conduct

Forceful/colourful language is injudicious 
Unfair conduct

- Distinguish unfair prejudice from bias: bias is prejudice unconnected with the merits of the case

"[39]...On that assumption it is far from clear that the observer would consider that the judge had given an appearance of bias. A painstaking reading of the full transcripts of the evidence given over four and a half days strongly suggests that, insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources." (Serafin v. Malkiewicz [2020] UKSC 23)

- Distinguish unfair prejudice from bias: bias is prejudice unconnected with the merits of the case

- Interventions during cross-examination should be as infrequent as possible

See also N19: Cross-examination

"[40] The leading authority on inquiry into the unfairness of a trial remains the judgment of the Court of Appeal, delivered on its behalf by Denning LJ, in Jones v National Coal Board [1957] 2 QB 55. There, unusually, both sides complained that the extent of the judge’s interventions had prevented them from properly putting their cases. The court upheld their complaints. At p 65 it stressed in particular that “interventions should be as infrequent as possible when the witness is under cross-examination” because “the very gist of cross-examination lies in the unbroken sequence of question and answer” and because the cross-examiner is “at a grave disadvantage if he is prevented from following a preconceived line of inquiry”. (Serafin v. Malkiewicz [2020] UKSC 23)

“[31] The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.” (Michel v The Queen [2009] UKPC 41)

Does not apply to final submissions

"[43] The distinction, drawn expressly or impliedly in all three of the cases last cited, between interventions during the evidence and those during final submissions was stressed by Hildyard J in para 223 of his judgment in the M & P Enterprises (London) Ltd case, cited in para 38 above. He suggested at para 225 that, upon entry into final submissions, the trial had in effect entered the adjudication stage." (Serafin v. Malkiewicz [2020] UKSC 23)

- Interventions during cross-examination should be as infrequent as possible

- Barrage of hostility towards claimant is unfair

"[48] But, when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented. It was ridiculous for the defendants to submit to us that, when placed in context, the judge’s interventions were “wholly justifiable”." (Serafin v. Malkiewicz [2020] UKSC 23)

- Barrage of hostility towards claimant is unfair

- Careful judgment cannot redeem unfair hearing

"[44]...For, as Black LJ said in the G case, at para 52: “the 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.” (Serafin v. Malkiewicz [2020] UKSC 23)

- Careful judgment cannot redeem unfair hearing

Temper conduct for litigants in person

"[46] No authority has been cited to us in which the conduct of the trial was alleged to have been unfair towards a litigant in person. The appearance of a litigant in person presents the court with well-known challenges. When, at an early stage of his judgment, the judge said that, for a number of reasons, conduct of the trial had been difficult, his first reason was that the claimant had appeared in person. The appearance of the defendants by leading counsel will no doubt in one sense have assisted the judge but in another sense will have made his task even more difficult. For Mr Metzer’s appearance made the imbalance of forensic resources all the more stark. Every judge will have experienced difficulty at trial in divining the line between helping the litigant in person to the extent necessary for the adequate articulation of his case, on the one hand, and becoming his advocate, on the other. The Judicial College, charged with providing training for the judges of England and Wales, has issued an Equal Treatment Bench Book. In chapter one of the edition issued in February 2018 and revised in March 2020, the college advises the judges as follows:

“8.       Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.

59.       The judge is a facilitator of justice and may need to assist the litigant in person in ways that would not be appropriate for a party who has employed skilled legal advisers and an experienced advocate. This may include:

·        Not interrupting, engaging in dialogue, indicating a preliminary view or cutting short an argument in the same way that might be done with a qualified lawyer.”

Training and experience will generally have equipped the professional advocate to withstand a degree of judicial pressure and, undaunted, to continue within reason to put the case. The judge must not forget that the litigant in person is likely to have no such equipment and that, if the trial is to be fair, he must temper his conduct accordingly." (Serafin v. Malkiewicz [2020] UKSC 23)

- Temper conduct for litigants in person
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