The Gazette 1955-58

the judge sits to hear and determine the issues raised by the parties, not to conduct an investiga tion or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question " How's that ? " His object above 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, L.C., who said in a notable passage that " truth is best discovered by powerful statement on both sides of the question" (see Ex p. Lloyds (i) (1822), and Lord Greene, M.R., who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputation ? The judge's part in all this 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 irrelevancies 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 cobe of an advocate ; and the change does not become him well. Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, .our keenness may out-run our sureness, and we may trip and fall. That is what has happened here. A judge of acute perception, acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties—nay, each of them—has come away complaining that he was not able pro perly to put his case ; and these complaints are, we think, justified. Now it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness's evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can pro perly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness's evidence can be properly tested,

and. it loses much of its effectiveness in counsel's hands if the witness is given time to think out the answer to awkward questions ; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross- examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Ex cessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy, sometimes, to return. Leading counsel for the widow submitted that the extent of the learned judge's interruptions was such that junior counsel for the widow was unduly hampered in his task of probing and testing the evidence which the board's witnesses gave. We are reluctantly con strained to hold that this submission is well- founded. ~ It appears to us that the interventions by the learned judge while junior counsel for the widow was cross-examining went far beyond what was required to enable the judge to follow the witnesses' evidence and on occasion took the form of initiating discussions with counsel on questions of law ; further, and all too frequently, the judge interrupted in the middle of a witness's answer to a question, or even before the witness had started to answer at all. (Jones r. National Coal Board (1957) 2 All E.R. 15 5). Damages against solicitors for negligence in advising clients. Mr. Justice Lloyd-Jacob, sitting as an additional Judge of the Queen's Bench Division, awarded £2,000 damages to Mrs. Hilda Kitchen, widow, of St. Mary Cray, Kent, against Messrs. Donald, Darlington and Nice, solicitors, of Clement's Inn, London, who were advising her on her claim against the West Kent's Electricity .Company, Ltd., arising out of the death of her husband on May 22nd, 1946, from electrocution from a faulty installation. His Lordship said that the clerk acting for the solicitors, having obtained the opinion of counsel, came to the conclusion that the plaintiff had no claim, and he permitted the time within which a 18