C–“Your slim gilt soul walks between passion and poetry.” Is that a beautiful phrase?
W—Not as you read it, Mr. Carson. You read it very badly.
Testimony of Oscar Wilde on Cross Examination (April 3,1895)
Trial lawyers have an unenviable task. The adversarial process requires good tactics and the ability to listen constantly, calibrate and then re-calibrate the questions asked and submissions made, while keeping an eye on the Judge, managing opponents, looking after client/s and witnesses, plus taking a note of the entire proceedings.
Between all this, a masterful case on paper can sometimes disintegrate during the evidence.
Things go wrong. You have to adapt, quickly.
In Chen v Ng (British Virgin Islands) [2017] UKPC 27 a dispute between ex-family business partners over the ownership of shares resulted in important guidance on the art of cross-examination from the Privy Council.
Background
The Judge at first instance rejected Mr Ng’s explanation for the share transfer on 2 grounds, neither of which had been discussed with Mr Ng during his day and a half cross-examination.
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The Eastern Caribbean Court of Appeal allowed Mr Ng’s appeal, in part because it concluded that the Judge was wrong to reject his evidence on the basis of facts that had not been the subject of cross-examination.
Madam Chen appealed to the Privy Council.
The Privy Council decision
The Board of the Privy Council, composed of 5 Justices of the UK Supreme Court, agreed with Mr Ng on the cross-examination point, though added some reservations and nuances.
52. In a perfect world, any ground for doubting the evidence of a witness ought to be put to him, and a judge should only rely on a ground for disbelieving a witness which that witness has had an opportunity of explaining. However, the world is not perfect, and, while both points remain ideals which should always be in the minds of cross-examiners and trial judges, they cannot be absolute requirements in every case. Even in a very full trial, it may often be disproportionate and unrealistic to expect a cross-examiner to put every possible reason for disbelieving a witness to that witness, especially in a complex case, and it may be particularly difficult to do so in a case such as this, where the Judge sensibly rationed the time for cross-examination and the witness concerned needed an interpreter. Once it is accepted that not every point may be put, it is inevitable that there will be cases where a point which strikes the judge as a significant reason for disbelieving some evidence when he comes to give judgment, has not been put to the witness who gave it.
There is a general rule that if it is not made clear before or during a trial that all or part of the evidence of a witness (and particularly a witness who is a party) is rejected as wrong, it will not normally be appropriate for that witness’ evidence to be attacked in closing speeches or in the judgment (see Markem Corpn v Zipher Ltd [2005] RPC 31).
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That was not the case here, since Mr Ng’s evidence was never accepted by Madam Chen and he was cross-examined on the basis that he was not telling the truth.
However, in these circumstances, whether a Judge is entitled to disbelieve a person’s evidence on the basis of points not covered in cross-examination will depend on the facts and in particular whether, taken as a whole, the trial was a fair one (§ 54).
Guidance to appeal Courts
Appeal courts reviewing a Judge’s determination must balance the need for finality and minimizing costs of litigation against the right to a fair trial. This is a relatively involved exercise, stemming from the fact that the Judge has had the advantage of receiving evidence first-hand, the appeal Court hasn’t. Factors to take into consideration include:
- The importance of the relevant issue (in absolute terms and in the context of the case);
- Any overlap between the grounds for rejecting the evidence and the points that were put in cross-examination;
- The reasonableness of the points not being put;
- The amount of time for cross-examination;
- The amount of material to be put to the witness;
- The extent to which the grounds for rejecting the evidence had been discussed in speeches to the Court, in witness statements or related documents;
- In some cases whether it is plausible that the witness may have provided a satisfactory answer to the grounds for rejecting the evidence
Appeal courts will also keep in mind the fact that factual findings will inevitably be an incomplete summary of the Judge’s impression of the evidence, and that: “reasons for judgment will always be capable of having been better expressed.”
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In this case, although the 2 grounds for rejecting Mr Ng’s evidence were reasonable in themselves, the rejection was wrong because it was based on facts that were central to the issues in the case (whether or not a transfer of shares had occurred) without Mr Ng being cross-examined on those matters (§ 57). These central issues could reasonably have been put to Mr Ng, but were not. Since Mr Ng was likely to have responses to the grounds relied on by the Judge that might have addressed the point.
The case was sent back for a full retrial, regrettable as that was after a 6-day hearing and an Eastern Caribbean Court of Appeal hearing.
Conclusions
In dismissing Madam Chen’s appeal, the Privy Council noted that her lawyers used much of the day and half cross-examination on “unnecessarily elaborate” points.
For trial lawyers, this case is an important reminder to keep cross-examination simple, ensure you make all your important points within the time available and beware over-complicating matters, even in a complex case.
Much of the art of advocacy is in the ability to make sense of complicated affairs and to consolidate the detail into key submissions. If your points aren’t getting through, that may mean it’s time to try a different approach.
If the overall texture of the trial (taking into account the multitude of factors set out above) suggests that it has been tainted by unfairness because, in part, of a lawyer’s line of questioning, that may form the basis of a successful appeal, albeit that the non-exhaustive list of factors to consider is substantial.
The importance of obtaining a good note of the entire hearing in lower Courts and Tribunals (which are not normally recorded) is also apparent.
