England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL

		Royal Courts of Justice,
		25th March 1957

DENNING L.J. read the following judgment of the court, saying that the case had given rise to complicated issues of fact and law. His Lordship stated the facts as set out above, and commented that the fact that, after the accident, the rolled steel joist was still in position, but the rails had broken, seemed to show that the steps taken to secure the place outwards from the previous fall had been successful, but that those taken to secure the newly exposed roof were not sufficient. Having referred to the contentions of the parties on the issues of liability he continued: Mr. Gardiner took a further ground of appeal which is stated in the notice of appeal to be "that the nature and extent of the judge's interruptions during the hearing of the evidence called on behalf of the defendants made it virtually impossible for counsel for the plaintiff to put the plaintiff's case properly or adequately or to cross-examine the witnesses called on behalf of the defendants adequately or effectively." Furthermore, Mr. Edmund Davies said that, in case there was any chance of our being persuaded that Mr. Gardiner's three points on liability were correct, he wished himself to give a cross-notice of appeal in similar terms complaining that the judge's interruptions prevented him from properly putting his case. We gave him leave to give a cross-notice to this effect.

We much regret that it has fallen to our lot to consider such a complaint against one of Her Majesty's judges: but consider it we must, because we can only do justice between these parties if we are satisfied that the primary facts have been properly found by the judge on a fair trial between the parties. Once we have the primary facts fairly found, we are in as good a position as the judge to draw inferences or conclusions from those facts, but we cannot embark on this task unless the foundation of primary facts is secure.

In order to consider the complaint we must state the course of the trial. Mr. Mars-Jones appeared for the plaintiff, and opened the case for her. He relied on section 49 of the Act of 1911, and said it was the duty of the board to make the roof secure, and that the fall showed that they had not done it. In case that approach was wrong, he relied on the Support Rules and on the common law, and he made several specific criticisms in which he said that the board had failed to do what they ought to have done. He called the widow to give evidence on damages, and then an expert, William Charles Davies. This expert had not been down the mine, but he relied on a plan which had been made by the board's surveyor shortly after the accident. This enabled him to make criticisms on the same lines as those opened by Mr. Mars-Jones. The judge intervened on several occasions during the examination-in-chief of that expert, and also his cross-examination, but this was in order to enable him to understand the technical points of the case, and cannot properly be made the subject of complaint. Mr. Mars-Jones then closed his case.

Mr. Edmund Davies, who appeared for the National Coal Board, then called John Kerr, the manager of the Llay Main Colliery at the time of the accident. He had inspected the spot on January 19, 1953, two days before the roof fell. He had been accompanied on that occasion by an inspector of mines, who made no complaint of the manner in which the work was being done. The manager explained to the judge exactly what was being done to support the roof, and the judge, naturally enough, intervened from time to time to see that he understood. Then Mr. Edmund Davies began to ask the manager to deal with the criticisms which had been made by Mr. Mars-Jones, and by his expert witness, W. C. Davies. Now, when this happened the judge, we fear, intervened far too much. He had himself made a note of the criticisms and, in his anxiety to understand the manager's replies to these criticisms, he took the examination of the witness out of the hands of leading counsel for the rest of that day and of his junior counsel next morning. Mr. Mars-Jones then cross-examined the witness; but during the cross-examination the judge intervened on several occasions to protect the witness from what he thought was a misleading question, and to bring out points in favour of the witness's point of view.

Next, Mr. Edmund Davies called Thomas George Davies. He was the deputy who was actually on duty on January 21, 1953, when the accident occurred. He said that he thought that the roof was secure, and that he had told the deceased workman and his mate to get the remainder of the coal off, and try to get another rolled steel joist up at this point. His examination-in-chief proceeded on normal lines; but during Mr. Mars-Jones's cross-examination the judge seemed to be afraid that he was being misled, intervened at considerable length, and in effect stopped his cross-examination on the important point of chocks. When Mr. Edmund Davies re-examined, the judge cut him short, saying: "This is what has been given again and again."

Then Mr. Edmund Davies called the surveyor, Philip Edgar Roberts, who made the plan. Nothing untoward occurred in his short evidence. Finally, Mr. Edmund Davies called Cecil Henry Bates, an expert consultant mining engineer. We are afraid that the judge took the examination-in-chief largely out of the hands of Mr. Edmund Davies. He took the points of criticism made against the defendants, went through them with the witness, and appeared to accept his explanations. Mr. Mars-Jones cross-examined the witness, but after a while the judge disclosed much impatience with him and he brought it to a close.

No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence, he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.

Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation 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 statements on both sides of the question"?: see Ex parte Lloyd (1822) Mont 70. 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 disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict": see Yuill v. Yuill, 61 TLR 176.

Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales - the "nicely calculated less or more" - but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties: see In re Enoch & Zaretzky, Bock & Co, (1910) 1 KB 327 So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other: see Rex v. Cain,4 Rex v. Bateman, 31 Cr.App.R. 106, and Harris v. Harris. The Times, Apr. 9, 1952, by Birkett L.J. especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg. v. Clewer, 37 Cr.App.R. 37. 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 robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that8: "Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal."

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 outrun 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 properly to put his case; and these complaints are, we think, justified.

We have sufficiently indicated the nature of the interventions already, but there is one matter which we would specially mention. Mr. Gardiner made particular complaint of the interference by the judge during the cross-examination of the defendants' witnesses by Mr. Mars-Jones. 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 properly 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. Excessive 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. Mr. Gardiner submitted that the extent of the judge's interruptions was such that Mr. Mars-Jones was unduly hampered in his task of probing and testing the evidence which the defendants' witnesses gave. We are reluctantly constrained to hold that this submission is well founded. It appears to us that the interventions by the judge while Mr. Mars-Jones 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. In our view it is at least possible that the constant interruptions to which Mr. Mars-Jones was subjected from the bench may well have prevented him from eliciting from the defendants' witnesses answers which would have been helpful to the plaintiff's case, and correspondingly damaging to that of the defendants.

The judge seems to have been under the impression on occasions that Mr. Mars-Jones was asking a misleading question. We do not gain that impression ourselves. It seems to us that the case was conducted by counsel on both sides with complete propriety.

Mr. Edmund Davies asked us to say that the decision reached by the judge was the inevitable decision, but we cannot say that. We have not the material for the purpose. We have some of the primary facts, but not all of those necessary to a decision. We have an adequate description of the state of affairs in this mine before and after the first fall, and before and after the second fall; but we have not sufficient evidence to be sure whether further precautions might not have been taken to avoid the accident. It seems to us that the widow made a strong case which calls for an answer. She showed that in the middle of December there was a big fall of roof at the roadhead notwithstanding that all the Support Rules were observed, and every normal precaution was taken. The fall disclosed a dangerous condition of the strata at this point. Seven weeks later her husband was killed by a second fall at near enough the self-same place by the self-same danger. Her counsel makes on her behalf this strong plea: "If this known danger could have been avoided by taking extraordinary precautions, why did the board not take those precautions? If the danger could not be avoided by any known precautions, why was her husband sent to work there? Better stop getting coal at that point than send him to his death." The board made answer: "We put up many more props than usual." The widow's counsel says: "Why did not you use chocks instead of props? You know chocks give much better support than props." The board answer: "We know that it is most desirable to use chocks whenever possible, but we could not get them in." The judge seems to have regarded that as a sufficient answer, though there is little doubt that chocks could have been used if the conveyor belt had been shortened. The judge, in his judgment, gave, as part of his reason for accepting the board's answer, his view that it was good mining practice not to use chocks, and that it would have been inconvenient to curtail the conveyor belt. But such considerations carry little, if any, weight when extreme measures for safety are called for. Again, he wrongly assumed that the shortening of the conveyor belt would involve exposing more men to the same risk. We are not saying that the judge was necessarily wrong in accepting the board's answer, but we would like to have more facts before accepting it as sufficient. In the absence of them, we do not think it would be fair to either party to pronounce upon it.

In these circumstances, we think we must grant the widow a new trial. There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. The widow and the National Coal Board stand in this respect on the level. No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.

Mr. Gardiner urged us in any event to give a ruling on the true interpretation of section 49 of the Act and of the Support Rules; but we do not think it desirable so to do. If there was a breach of the section or rules there is still the question under section 102 (8) whether it was reasonably practicable to avoid or prevent the breach. This is closely allied to the issue at common law whether the board took every reasonable precaution that the situation demanded. So close indeed are these issues that we think that, if the board are exempt from liability at common law, they will be exempt under section 102 (8) also; and if they are also liable at common law, there is no need to consider whether they are also liable by statute.

We have come to the conclusion, with much regret, that the only thing we can do in this case is to order a new trial. We allow the appeal accordingly.

Appeal and cross-appeal allowed. New trial ordered. Costs of appeal and in the court below reserved to the judge on the new trial.


M. M. H.