Jones v National Coal Board (1957) 4 QB 55
Topic: bad judicial behaviour
Issue: The roof of a coal-mine (Llay Main Colliery, Wrexham) had fallen in. A miner (Emlyn Jones) had been buried by it and died (21st January 1953). The widow claimed damages for negligence etc against the National Coal Board.
Trial place: Chester Assizes
Date: July 1956
Widow’s Counsels: William Mars-Jones (a future QC and High Court Judge) and Emlyn Hooson (a future MP, QC at 35 and Life Peer).
Judge: Hallett J.
Outcome: He rejected the widow’s claim. His conduct of the hearing was bad, particularly towards her counsel.
Appeal: The Widow appealed on the ground, among others, that the judge’s interruptions had made it impossible for her counsel to put her case properly. The Board put in a cross-appeal including among others that the Judge’s interruption had prevented the Board from having a fair trial.
Appeal Counsels: The appeal was argued by Mr Gerald Gardiner QC (afterwards Lord Chancellor) for the widow. He was the most able advocate Danning LJ has known. On the other side was Mr Edmund Davies QC (afterwards Lord Edmund-Davies and very popular). He was the most resourceful.
Appeal Judges: Denning (not yet a Lord, nor Master of the Rolls), Romer, and Parker (not yet a Lord, nor Chief Justice), LJJ.
Date: 4 days in February and March 1957
Outcome: Appeal allowed for the Widow following Hallett’s misconduct, and ordered a new trial. On this occasion Judgment was reserved for just over three weeks, 24 days. Lord Justices realised that it might lead to the end of the judge’s career; as it did. So they took special care.
Judgment of Lord Danning speaking for the whole court:
‘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.
No one can doubt that the judge, in intervening as he did, was actuated by the best motives.
He was anxious to understanding 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 notable necessary role. Was it not Lord Eldon LC who said in a passage that ‘truth is best discovered by powerful statements on both sides of the question’?: see ex parte Lloyd. And Lord Greene MR 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.
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. 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. 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 R v Cain, R v Bateman, and Harris v Harris by Birkett LJ 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 R v Clewer. 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 that: ‘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.