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. The risk was not whether a reasonable observer would see bias, but that the judge would have descended into the arena in the battle between the parties: ‘The transcript reveals a constant stream of interruptions by the judge throughout the trial, including sometimes lengthy passages of interrogation of the witnesses, both during examination-in-chief and during cross-examination.’ and
‘interventions by the judge in the course of oral evidence (as opposed to interventions during counsel’s submissions) must inevitably carry the risk so graphically described by Lord Greene MR. The greater the frequency of the interventions, the greater the risk; and where the interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one.
It is, we think, important to appreciate that the risk identified by Lord Greene MR in Yuill v. Yuill does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge’s descent into the arena (to adopt Lord Greene MR’s description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair. ‘ A retrial was necessary.
Judges:
Lord Justice Jonathan Parker Sir Martin Nourse Lord Justice Laws
Citations:
Times 01-Jun-2006, [2006] EWCA Civ 281
Links:
Statutes:
Housing Act 1985 122 Sch 2 Part 1 G1 G2
Jurisdiction:
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 – Cumming v Danson CA 1942
The court considered what amounted to reasonable alternative accomodation.
Held: it was the judge’s duty to take into account all relevant circumstances as they exist at the date of the hearing. There is a fundamental difference in the Rent . .
Cited – West Kent Housing Association Limited v Davies CA 4-Feb-1998
The court should recognise the seriousness of the case where the Housing Association was doing its best to improve the quality of life for those living on a housing estate, when its efforts included obtaining witnesses as to the tenant’s behaviour . .
Cited – English Churches Housing Group v Shine CA 7-Apr-2004
The claimant was a secure tenant of English Churches Housing Group. He was unemployed and lived on benefits. He claimed damages against his landlord for breaches of the repairing covenants implied by section 11. The court considerd the appropriate . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Jones v National Coal Board CA 17-Apr-1957
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 . .
Lists of cited by and citing cases may be incomplete.
Housing, Litigation Practice
Updated: 09 August 2022; Ref: scu.239218