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Mr Justice Lightman

Speech to the
London Solicitors' Litigation Association
"The Case for Judicial Intervention"

The Law Society, London

9 November 1999

Introduction

The principles governing the judge's conduct of proceedings and limiting his role in those proceedings have been the subject of debate from the earliest times. The Book of Genesis tells us that the judge is bound to respect the rules of natural justice and give both sides a hearing. Before he pronounced judgment God gave Adam the chance to put forward his defence to the charge of having eaten the forbidden apple (he pleaded obedience to the superior orders of his wife) he gave Cain the opportunity to explain the disappearance of his brother Abel (he pleaded amnesia). In the great Talmudic work comprising ethical teachings of the two centuries before and two after the Common Era, The Ethics of the Fathers Verse 7 of Chapter 4 this advice is given to judges: "In the judge's office, act not the counsel's part" - do not act as an advocate for one side or the other, but retain and be seen to retain your detachment and impartiality. These principles governing judicial conduct ("the Principles") are eternal and retain their full force today. Stated shortly, they provide that the parties are entitled to a fair opportunity to present their cases before a judge who is open minded as to the merits and outcome. Are active trial management and a degree of active judicial participation in the trial process - which is a prominent feature of litigation today - compatible?

Judicial intervention is not new: it has long been a matter of course in appellate tribunals (most particularly the House of Lords and the Privy Council). But it was until recently only occasional or exceptional at first instance, and the reports of counsel and the Court of Appeal suggest that the form which some judges' intervention took in earlier days was not always such that the experience was particularly pleasant or elevating. This gave judicial intervention a bad name. But in my view the increasing interventionist role of modern judges in civil proceedings is not merely entirely compatible with the Principles but is designed and calculated to advance them as well as the pursuit of justice. The interventionist judge must at all times keep the Principles in mind and the Principles must inform and temper his intervention. But subject to this need for proper self restraint, the interventionist role is both healthy and to be encouraged. I shall seek to identify some of the benefits and goals of judicial intervention and signpost areas where judicial restraint is called for to ensure that the Principles (which are designed to secure a fair trial) are safeguarded.

The Changing Role of the Trial Judge

3. There has been nothing short of a sea-change since I began practice in 1963, for they explain and illuminate the change in the role of the trial judge. In those far-off days the parties were entitled (indeed encouraged) to keep their cards as close to their chests as possible. The critical focus of attention before and at trial was the pleadings - indeed before the Second World War the trial began with the juniors "opening" (that is to say reading) the pleadings before the leader got up to speak at all. The pleadings were of critical importance because they were the only indication before trial of the case to be made and the evidence to be called on each side. As years went by, from being the briefest and most elliptical summary of the facts, they became lengthy and verbose as though it was a reproach to a pleader with an established reputation (and a charge rate by the page) to have a pleading of 10 pages when a pleading of 20 would equally do: but in both versions (brief or lengthy) they tended to be uninformative. Interrogatories were very rarely ordered. There was no exchange of witness statements - not even of expert reports. A party was not under any obligation to disclose the identity of the witnesses he proposed to call or whether he intended to call any at all. This was reflected in the rule of pleading that a party was not entitled by way of particulars to elicit the evidence which his opponent intended to call or the identity of his witnesses. Because the pleadings alone gave a party notice of the case and the evidence to be presented against him - and accordingly the case and evidence which he had to counter in his own evidence and cross-examination - strict rules were laid down prohibiting any departure from the pleaded case and strict limitations were placed on the right to amend, most particularly shortly before and at trial. The only possible assistance beyond the strict pleading in knowing what cards a party had in his hands was afforded by discovery: and because of the evident need for such assistance the doctrine of discovery was developed to require discovery of documents on the very limits of relevance.

4. It is difficult today to recapture the challenge faced by the advocate during trials in those days - not knowing who was to be called by the other side, what he would say and having to cross-examine "on the hoof". This ordeal was most particularly wearing in case of the calling of expert witnesses in disciplines foreign to the advocate. It was scarcely practicable to prepare ahead of time since it was not clearly known for what it was necessary to prepare. On occasion the trial judge might allow a party, after his opponent had called his expert, a short adjournment of (say) an hour or perhaps even the rest of the day to take instructions from his own expert (if he had one) to prepare his cross-examination, but this was far from being a matter of course. This was a time when there was a premium on ambush and taking your opponent by surprise: litigation was a sport and the outcome turned very much on who you could afford to instruct as your advocate and champion.

5. If the advocate was under a handicap knowing the case he had to meet before he met it, he at least knew his own case. But the trial judge knew neither sides' case. The trial judge did very limited (if any) pre-reading. There was in any event precious little to pre-read. He had only the pleadings and they were neither inviting nor illuminating. He had no idea what the parties had in store. He was (as he would say when asked by counsel what course they should take) "in the hands of counsel" and he gave them a free hand. The judicial role at the trial was necessarily limited to sitting silently (albeit with occasional bursts of ill temper) through prepared speeches and (often) over lengthy examinations and cross-examinations of witnesses. He would only intervene to insist upon compliance with the rules of evidence and procedure (ordinarily if moved to action by one of the parties and exceptionally, where the non-compliance was blatant, on his own initiative). The role of the judge (as appears from reported judicial pronouncements at the highest level) was not the search for justice between the parties: his limited knowledge placed him in no position to make such a search in the case before him; it was limited to the adjudication of matters in dispute on the pleadings and on the evidence placed before the judge by the parties. The idea that the judge in the pursuit of justice could himself take an active part or (forfend) call a witness (save in very limited and exceptional cases) was heresy. Until late in the trial he could scarcely have any informed thoughts, and in practice the role of silent observer, initially assumed as a matter of necessity because of his lack of knowledge of the case, he tended to maintain until judgment. The judge would keep his thoughts (if any) to himself. Indeed his silence was generally such that it was impossible to know how his mind was moving (if at all) and accordingly to direct evidence or submissions to the areas where he needed help. The judge was a sphinx, only he rarely smiled. At a time when there was no retirement age and luncheon for many was an occasion for wine, the afternoon was particularly testing for the advocate. The dilemma facing Counsel was to decide whether the judge's accustomed silence was attributable to thought or digestive processes. In short the trial judge's role was essentially passive because he could not obtain any overview of the case, the issues or the evidence until very late, if not until closing speeches: he was therefore not equipped to intervene.

Appellate Courts

6. Before I turn to the developments in trial procedure, I think it would be illuminating to make a short excursion to compare the procedure in the appellate courts during this same period. The lack of any overview of the case which precluded the adoption of an interventionist role by the trial judge was not present in the appellate courts. The appeal judges were furnished before the hearing with the judgment below and the notice of appeal. This enabled them by pre-reading to identify the issues, participate in the debate before them at a serious level from the very start and to form provisional views before the hearing. They did not always avail themselves of the opportunity to pre-read, but when they did (and sometimes when they did not) they did not hesitate to express such views even at the commencement of the hearing. In doing so they could subtly mask the provisional nature of their views. Two experiences stand out in my memory. In one of my earliest cases and the first case I ever had as Counsel in the Privy Council, granted leave to appeal by Lord Wilberforce, I rose to my feet to open the appeal with some confidence that I had a good arguable case. I was however greeted by the presiding Law Lord with a somewhat less promising prognosis. "Mr Lightman, you have no case on the law: you have no case on the facts; and you have no merits." He never changed his mind. In one of my last in the House of Lords I represented Playboy in proceedings between Playboy and a firm of solicitors in a dispute as to the entitlement to a sum stolen from this firm and lost at the Playboy Casino. I won at first instance and in the Court of Appeal. I accordingly had grounds for feeling a degree of confidence as to the outcome. A senior Law Lord greeted me as I got to my feet with a smile and helpfully marked out the hurdle I had to overcome if I was to succeed. He said: "Do not think that you will ever persuade me to allow a casino to prevail over the innocent victim of theft". He was right, I did not persuade him. In short the practice of the appellate courts was very different from that of courts of first instance: they could and did effectively intervene because (unlike the trial judge) they had the wherewithal to do so from the very beginning of the hearing. This was a lesson to be carried over into first instance civil trial procedure.

The Process of Transition at First Instance

7. During the 1960s and 1970s, it gradually became recognised that the traditional judicial "hands off" approach at first instance did not create the very best of all possible worlds, and that the rules governing litigation should be less of a traditional pursuit, and more of a pursuit of justice. It became increasingly recognised that the legal process should be framed which was calculated to secure that the parties to disputes would obtain the resolution of their disputes, whether by conventional settlement procedures, mediation or judgment of the court, both expeditiously and economically; that the traditional trial methods hopelessly failed to do so; and that fundamental change was called for.

8. The first step necessary to this end was to change the Rules of Court and practice in the courts so as to provide that the parties should at an early stage more and more put their cards on the table. The Rules were so changed and for the first time required the parties to exchange, initially only expert reports, but later also witness statements; the judges adopted a practice displaying a more generous attitude to ordering interrogatories; and finally the judges adopted the practice (later translated by the CPR into a legal obligation) of requiring skeleton arguments as a matter of course.

9. Alongside this change in the Rules and practice the second step required was a change in the role of the judge at and before trial. As the parties became required to disclose their hands beforehand at each stage in the trial process, the trial judge (like the appellate judge) was able to enter the court informed and on the ball. He was no longer in the hands of counsel. He could take control and steer the case. He did not have to sit silently gradually absorbing what the case or application he was hearing was about: he was already there. Informed judicial intervention was born. It reached full age with the CPR.

Procedural Intervention

10. Broadly speaking judicial intervention may take either of two forms. There is what I would call procedural intervention where the judge ahead of trial takes the initiative in laying down timetables for the various steps and stages before trial and at trial. (This includes directing or encouraging mediation). There is a division of opinion whether this form of intervention is helpful. The view has been maintained that litigators, rather than judges, know best in this area and in particular what is in the interests of their clients and that decision-making should be left in their hands. This argument can only avail in cases where the parties are in agreement: where they are not, the court must necessarily intervene. It is sufficient to say that the war is now long over: the CPR has assigned the responsibility to the judges. I doubt if the court often overrides the wishes of both parties. In reality the judges afford (as they must) due weight to the views of the parties' legal advisers. The primary area of complaint (as I understand) is the court's readiness to order a degree of expedition which is uncomfortable or unpalatable to the advisers. This is surely justified by the need to remove as early as possible the cloud which litigation creates over the lives of litigants. But even if grounds do exist for complaints, there is scarcely scope for complaint that the exercise of this jurisdiction is out of harmony with the Principles.

Substantive Intervention

11. By substantive intervention, I mean intervention in the course of the trial itself. The hall marks of a modern civil trial are twofold: (a) pre-reading by the judge (most particularly of the parties' skeleton arguments); and (b) active participation by the judge in the hearing. A third feature sometimes present is (c) the placing by the judge of time limits on the length of speeches and cross-examination. I want to consider each of these in turn.

(a) Pre-Reading

Pre-reading is the means of saving time and cost otherwise expended on the advocate reading and addressing the judge during court time paid for by the parties. It is also the means of putting the judge in the picture before the case begins. The most important documents for this purpose are the skeletons which ought to give the judge the necessary overview of the case to know what the issues are; at least to begin to form provisional views before the hearing begins; and when it begins, to give indications of the areas which matter and where he needs help - in short to take charge and give direction. The insistence on skeletons has given rise to some complaints. Some counsel have objected that they came to the Bar to be advocates in court, and not to prepare documents. One distinguished counsel objected to the requirement in cases when he had a weak case because (as he forcefully complained) it was easier to talk nonsense than reduce it to writing. A more substantive objection has been the cost. I can see force in that objection where the skeleton is required an unnecessarily long time in advance of the hearing, but otherwise the cost of the reduction into writing of the work product of the advocate's preparation is more than compensated by the saving of time (and accordingly the cost) at the trial.

(b) Active Participation of the Judge

(i) Judicial Questioning of the advocates and witnesses

Once the skeleton has been read, the purpose of the advocates' speeches is essentially (where required) to elaborate and supplement the skeletons and answer the questions raised on them by the judge. The old practice was (and even today the continuing practice before a few judges is) to let the advocate get on with it at his own speed with scarcely any judicial interruption by questioning. I (and many other advocates) at the time found this judicial reticence unhelpful as it was totally uninformative, leaving the advocate at sea as to the areas where his submissions would be of assistance and where they would not. It is today in my view incumbent on the judge in fairness to interrupt to raise any concerns which he has, so as to give the advocates the opportunity to allay them before he gives his decision. It is surely scant justice to decide a case on a ground which the judge has given no indication to be troubling him. Complaint is sometimes made about questioning. In one case before me, a complaint was made by counsel that I kept asking him difficult questions, but I did not ask such difficult questions of his opponent. His client apparently took the view that this was indicative of bias. The reason for this difference in treatment of the parties' submissions lay in the character of the submissions: one party's submissions were highly questionable whilst the other's were not. Questioning (rather than silence) is the hallmark of a fair hearing - questions are a plea for assistance in clarifying, understanding and enabling acceptance of submissions. They are a challenge to the advocate - to a good advocate they afford the opportunity to make good the vulnerable areas in his case. A judge may appear fierce when he is really only hungry for assistance. The trained advocate recognises the symptoms and sets out to feed and satisfy him.

Judicial intervention today gives the judge more scope than previously to ask questions of witnesses. The judge will have read the witness statement before the witness is called (and often all the witness statements) and he may know to what questions he needs the answer. He does not need to wait to see if the question is asked and then what answer is given, and he need not accept the sufficiency of an answer just because the advocate does. But this is an area where (paying respect to the Principles) the judge must be particularly cautious. His questioning out of turn may frustrate a planned cross-examination, and if he asks (as he is entitled to) leading questions, (questions suggesting their own answer), the witness may psychologically find it difficult to resist the perceived judicial pressure to give that answer.

(ii) Provisional Views

For example, complaint is likewise sometimes made that the interventionist judge by his interventions (by his leading questions to the advocate) can make plain his view before he has heard the full argument or case. The charge made is that by so doing the judge is showing himself partisan or is wrongfully prejudging the issue before him. In my view, so long as the judge has carefully read the skeletons, listens to the answers to his question and keeps his view provisional until he has heard the answer and heard any relevant evidence, there is no substance in the complaint. It is the very function of the skeleton to inform the judge of the issues and assist him to reach the answers; that he can and does form a provisional view after reading the skeleton argument is neither surprising nor objectionable. I cannot see any contravention of the Principles or any other objection to expression of a provisional view. The open mind required of the judge is that with which he begins his pre-reading. It is surely inevitable that in many cases pre-reading will cause an experienced judge to form provisional views of varying firmness. The judge's provisional views may change or vary in strength as the case proceeds. I see no advantage on any embargo on disclosure of what plainly and quite properly exists in his mind. So long as the judge's mind remains open and is seen to remain open, I can see no objection in principle to forming or disclosing that view. Indeed on occasion disclosure can be of great assistance.

it can tell the advocate the issues on which the judge needs persuading;
it can afford the parties some guidance on the wisdom of continuing claims or defences (and accordingly incurring further costs);
it can operate to encourage the parties to settle or go to mediation (one of the stated objectives of judicial case management).

An example of the occasion when the expression of a provisional view can prove particularly helpful is when the judge is concerned (for example, having seen a party in the witness box) that he may in his judgment have to make some damning finding (for example, as to his honesty or integrity). He may (as it seems to me) in the proper case legitimately draw the attention of the parties to this risk and so encourage a resolution of the dispute which precludes any such finding in his judgment and the public shaming of that party. In short the expression of a provisional view is likewise entirely in accord with the Principles. The judge must of course be sensitive in two respects: that the view is not expressed before he is really able (and seen to be able) fairly to reach such a provisional conclusion; and that after such expression it will remain (and be seen to remain) provisional until the party affected has had a proper opportunity to displace it.

Judges as part of trial management, to save time and costs now (as never before) do on occasion lay down time limits for cross-examination and speeches. Such a limitation can be fair and fairly applied. It is no justification for a longer period for one counsel than for his opponent that, (as was argued in vain in one case) he is a slower thinker and speaker. But it is essential that the court should have done all the necessary pre-reading and there must be a degree of flexibility to meet unforeseen contingencies. In such a scenario some economy of judicial interruption may be called for to prevent the allowed time being expended on what the advocate may fairly consider to be judicial diversions. But I do register my grave concern regarding the course now coming into vogue of a time limit combined with (in order to safeguard against judicial diversions) a total elimination of judicial questioning. Such an abnegation of the judicial role in the process of advocacy before the court is, I think, highly objectionable. The advocate (as I have already said) needs to know what matters to the tribunal and what does not; what to focus on and what to pass lightly by. In their absence, it is a gamble - a matter of chance - whether the advocate addresses the questions which will (in the event) decide the case and the judge (or judges) may not get the assistance he (or they) vitally needs. The court for the performance of its responsibility must be free through any hearing to seek assistance from the advocate in understanding submissions and in tackling the tasks before it. The adoption of a rule in any case precluding judicial intervention is fraught with danger of causing injustice - and creating the perception of injustice - and, whilst judicial economy in questioning may have real merit, a famine devalues the oral argument reducing it to the equivalent of an argument on paper alone, and is a service neither to the litigant or the court.

Consequences of Intervention

12. Judicial intervention can have the effect of converting the advocate's monologue into a debate which concentrates on the topics selected by the judge. This has an impact on the roles of the advocate and the expectations of the client.

(a) Role of Advocates

Judicial intervention has the most important and far-reaching implications for advocates. Different qualities and skills are called for. Advocacy skills are no longer to be measured in terms of the preparation and delivery of lengthy speeches.

(1) The skill in preparation to be valued today is in preparation of quality and informative skeleton arguments and chronologies. Skeleton arguments, properly prepared and used, are the foremost weapon in the advocate's armoury and the vehicle for short and focused hearings. That is not a talent taught at law schools until recently. The impact on the judge of a quality skeleton argument cannot be over-estimated. It is the party's first "speech" to the judge which he is allowed to deliver without any interruption by the judge. The judge may legitimately assume that it is the advocate's best effort on which the judge is asked to make at least his provisional judgment, and the advocate must realise that it may be difficult thereafter (if not impossible) to shift that view.

(2) The skill in advocacy is no longer the ability to drone on uninterrupted for hours: that is the perquisite of the judiciary alone. It is the ability to assist the judge, most particularly in answering his questions and resolving his doubts. The advocate must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade. This requires having the facts at the advocate's fingertips and the legal principles in mind and relevant passages in authorities and textbooks at hand - a far greater knowledge of all these is now required than was the position when the judge remained recumbent throughout the proceedings. The premium today is upon flexibility - to deal with issues raised, not as the advocate may have planned, but as they are raised by the judge. I cannot over-emphasise the importance of gaining the judge's trust and confidence in the advocate's preparation and accordingly the solidity of his submissions and answers to questions asked of him.

(b) Client Expectation

The traditional course of litigation afforded the litigant of listening to the mellifluous presentation by his advocate of the history and facts as he contends for them and of the law as it appears to his legal advisers - a presentation on occasion directed as much to the press as to the judge. This was his "day in court". Any continuing such expectation is likely today to be disappointed. If the client has still any such expectation, it is surely the duty of his legal advisers to disabuse him of it and explain the critical role of the skeleton argument (which can contain the input of the client and be sent beforehand to the client for his approval). He should be told that it takes the place (at least in part) of the opening address. I regret to say that the complaint of the client is often attributable to the failure to appreciate the role and importance of the skeleton - and the failure of his legal advisers to give the preparation of the skeleton the importance and attention it requires. He should also be told that the questioning by the judge is the opportunity to make more - and not less - of what is and can be said - and he should then be allowed to see his advocate take advantage of this opportunity.

Conclusion

15. The trial judge until the 1970s was generally tame and on a tight lead. He may now be found barking - on occasion perhaps biting at the ankles of advocates. The aim of the judge is by judicial intervention to promote justice by saving time and costs and concentrating on essential issues without any sacrifice of the Principles. Not every intervention is of this character or achieves this goal and not everyone has adapted to this change or approves of it. But my understanding is that the appreciation of its value is growing and that the aim of judicial intervention is to considerable degree being achieved.

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