224 / 324
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