The judgment of the Court of Appeal in Global Corporate Ltd v. Hale [2018] EWCA Civ 2618 will be of interest to many practitioners who regularly interact with litigants in person. All 3 appeal judges (Patten, Asplin and Coulson LJJ) were critical of the trial judge, HHJ Paul Matthews (sitting as a judge of the High Court) in asking questions of the Defendant (Hale) that amounted to a cross examination.

The claim concerned payments made from a company (Powerstation UK Ltd) to the Defendant, who, at the time, was both the Director and a shareholder.

The Court noted that a trial judge was perfectly entitled to ask a witness to clarify answers, but the judge on this occasion had asked a number of “highly leading” questions and the judge’s ultimate finding had been based upon a “new line of cross-examination introduced by the judge himself for which there was no existing evidential basis”.

The Court of Appeal’s lead judgment was given by Patten LJ, although both Asplin and Coulson LJJ added their own comments. Asplin LJ’s short judgment is of particular interest as it highlights the limited role the Court should have when assisting a litigant in person with evidence:

“....the judge should take care not to ask leading questions of the unrepresented party in his capacity as a witness. It may even be necessary to ask questions of other witnesses about matters central to the issues in the case which have not been posed by the unrepresented party in cross-examination. Such questioning should be approached with caution and limited to essential matters.”

It should be noted that the Judge subject to the Court’s criticism has previously given published judgments concerning litigants in person, with reference to the Supreme Court case of Barton v Wright Hassall LLP [2018] UKSC 12, where he clearly set out his views on the limits to which the Court should make allowances for litigants in person. Summaries of these previous decisions can be found here and here.