Duncan Lewis

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Appeals judges have warned that judges should think twice before stalling a cross examination

Date: (19 October 2012)    |    

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The appeal judges have warned that advocates may have better grasp of forensic realities.

The appeal judges have warned that judges should think twice before halting cross-examinations by advocates particularly when they respond by standing their ground Lord Justice Munby has said.

Munby LJ said that judges presiding over family cases too should stop irrelevant or time wasting cross examinations.

But he also said that they should always keep in mind that however carefully they might have read the papers, the lawyers were likely to have a better grasp of the inner forensic realities of the case.

He added that a judge has to think twice if the lawyers reasons were considered carefully and had not been taken as ‘off the cuff’.

Delivering the leading judgment In the Matter of J [2012] EWCA Civ 1231, he congratulated family lawyer for “politely but firmly standing her ground and telling the recorder plainly that his ruling was preventing her putting her client’s case”.
Munby LJ added that it was a pity that the recorder did not, even at that point, see any reason to change his mind.
The court heard that Mr Recorder Bryan was sitting at Southend County Court, hearing an application by the mother of a nine-year-old boy for a sole residence order.
The mother represented herself and the father was represented by a family lawyer. The recorder ordered that the existing residence order should be discharged and the boy should reside with his mother.
The father appealed, arguing that the recorder had restricted questioning of the mother, preventing the father from putting his case.
According to a transcript of the hearing, at one point Recorder Bryan asked the counsel of father whether she wanted the witness to “rake over all her earlier concerns and worries” and advised her that the court wanted to “move forward rather than to linger”.
The counsel had persisted, saying the mother was demanding a “vast reduction” in the level of contact and that she wanted to get to the bottom of why the mother was feeling it that necessary.
Recorder Bryan replied that he was reassuring the counsel that she was not going to gain any mileage out from the line of cross examination and that he was interested in looking forward to her further questions.
Later, when the family lawyer said she would be hampered from putting her client’s cases if she could not explore the mother’s allegations, the recorder replied that that may as well be but they were still stuck where they were.
Lord Justice Munby allowed the father’s appeal. Lord Justices Maurice Kay and Lewison agreed.