In a judgment published on the BAILII website this week, a High Court Judge, Mr Justice MacDonald has criticized barristers involved in a case concerning the contact a 13 year old girl should have with her father, for the way they constantly interrupted one another (the case is A v R & Anor (Appeal of Summary Determination)  EWHC 521 (Fam) (21 March 2018 and can be read here).
MacDonald was dealing with an appeal from a less senior judge (His Honour Judge Scarratt), and was referring to the transcripts of an earlier hearing which showed that there was so much interruption that important points were not raised or followed through – and this did not help the judge in dealing with the case and making a sound decision. Although this was not the only reason for allowing the appeal, MacDonald was certainly not impressed. The appeal judgment makes clear that in the course of two hearings in the case on the same day before two different judges the advocates essentially argued across the court (described by the father as a ‘shouting match’ – and neither judge stopped it. This is perhaps one of the more surprising features of the case, because court hearings follow a certain structure – precisely to ensure that nothing gets missed out and everyone has a fair chance to put across their points. When litigants don’t have lawyers a judge will often explain to them that the court expects everyone to wait their turn to speak, and to make a note of all the points they want to raise so that they can be dealt with in one go. A lawyer should rarely have to be reminded that is how things work.
But in this case it isn’t just the lawyers who will be a bit red faced – the expert in the case is also criticised. The parties had instructed a psychologist to carry out an assessment looking at the child’s resistance to more contact (some was happening) – it had been received the night before the hearing and everyone agreed that it was of poor quality and no real help to the court. One of the reasons the court allowed the appeal was because the judge refused to allow the father time to find a fresh expert to do the job properly even though the court had earlier decided that the court couldn’t finish the case without the help of an expert, and even though the judge agreed that the report was “nonsense” and that the expert had gone “completely off piste”. That expert is named in the judgment – it’s not clear that he had a chance to comment on the general suggestion that his report was rubbish and he certainly didn’t have an opportunity to defend it through cross examination because he was not called to give evidence.
The court allowed the appeal because the judge had not heard submissions on all the relevant matters before reaching his decision – but the appeal judge didn’t agree that the judge had failed to prepare properly for the hearing, or that he had prejudged the matter. The father’s grounds of appeal included these two points because the case had come back before HHJ Scarratt at short notice, having been dealt with briefly earlier that day by a District Judge attempting to help HHJ Scarratt cover some of his list. The District Judge had then passed the matter back to Scarratt who told the parties that he had not had time to read the bundle and had read the expert report over his sandwich at lunchtime, before making some strongly worded remarks about how he was not prepared to adjourn the matter given the child’s wishes and feelings. The father understandably took the bundle and sandwich remarks as an indication that the judge was not properly prepared – but the appeal judge, seeing things from a somewhat different perspective explained that judges are all very overworked and reading papers over lunch is both necessary and normal in order to deal with judicial workloads. And in this particular case HHJ Scarratt had significant knowledge of the case as he had been dealing with it for some time.
All in all it sounds as if everybody in this case was probably trying to squeeze too much into too short a space and the end result was more cost, more time spent and more delay and it affected how well they were doing their jobs. By the time the case came on appeal the father was in person (presumably having run out of money) and it sounds like he did a very good job of it too. The case will now have to go back again for a proper hearing – but not until the instruction of a new expert has been considered.
Feature pic : seals arguing by Liz Lawley on Flickr (creative commons – thanks)