The judicial function of dealing with cases justly in an adversarial system requires a first instance judge ‘to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.’ That does not mean the judge is ‘a mere umpire to answer the question ‘How’s that?”.
Lord Denning MR said: ‘His object, after all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC who said in a notable passage that ‘truth is best discovered by powerful statements on both sides of the question’? And Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations?’
. . and ‘A judge’s part . . 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 irrelevances 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 role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.”
Lord Denning MR
[1957] 2 QB 55, [1957] EWCA Civ 3, [1957] 2 All ER 155, [1957] 2 WLR 760
Bailii
England and Wales
Citing:
Cited – Yuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .
Cited by:
Cited – London Borough of Southwark v Kofi-Adu CA 23-Mar-2006
The authority complained that during the course of the trial, the judge had repeatedly intervened during oral evidence.
Held: A judge must be careful not to repeatedly intervene during oral evidence as opposed to counsel making submissions. . .
Cited – Michel v The Queen (The Court of Appeal of Jersey) PC 4-Nov-2009
michel_rPC2009
(Jersey) The defendant appealed, complaining that the number and character of the judge’s interventions in his trial for money laundering had made it unfair.
Held: The conviction was quashed and the case remitted for a decision as to . .
Cited – Watson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .
Cited – Re S (Children, W and T) CA 14-May-2014
The parents sought leave to appeal against a care order made on a finding of sexual abuse of one of the children, saying that the court had failed to allow for the inherent improbability of the facts alleged. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Leading Case
Updated: 01 November 2021; Ref: scu.242455
