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Litigants in person: part 4

Having failed to get the case put off for a further day, the next morning (the case for the authority having finished) the litigant in person commenced giving his evidence.

Giving evidence in any proceedings falls into three parts. Evidence in chief where the person gives their evidence that they wish to give, (obviously as with all evidence subject to the rules regarding evidence for example whether it is relevant evidence and whether it is admissible evidence: some of these issues have been dealt with in various Friday articles on this site). Then the other side or the other parties (sometimes for example there can be more than two parties to litigation) can cross examine that witness by asking the questions that they want or need to ask. After the cross examination the representative for the party which has called the witness to give evidence can then re-examine. Re-examination can only be to clarify or explain answers given to questions asked in cross-examination. It is not an excuse to try and put in more evidence which ought to have been put up in the first place.

Nowadays in civil proceedings evidence in chief is given in the form of a statement and the only questions which will be asked by the representative are supplementary questions which the court decides to permit. Thus the witness will be in the witness box for only a very short time giving their evidence in chief. The aim of this is to make the proceedings go more quickly, and to avoid the other side being taken by surprise. As against that, from the point of view of a witness examination in chief was often a useful time for them to become accustomed to giving evidence as opposed to being thrown straight into cross-examination, and evidence given in the traditional way by the witness will always end up being much closer to what the witness actually recalls and thinks rather than a witness statement which is being worked on not just by the witness but by questioning from the lawyers for that side who will produce the final draft.

With the litigant in person there is no representative to ask them questions, they just give their evidence. This case occurred before the changes meant that evidence in chief was largely written, so that the litigant, instead of being asked questions, essentially made a speech from the witness box intended to be his evidence. Then came cross-examination.

Questions in cross-examination can sometimes be objected to on a variety of technical grounds. Obviously in a normal case the objection if it comes will come from the legal representative such as the barrister acting for the party calling the witness. Where there is a litigant in person the litigant is also the person conducting the case and so in the same position as a barrister would be namely the one who has to take the objections. When the barrister asked the first question the litigant objected to that question on the grounds that it was not relevant. What of course happens then is that there has to be an argument about whether the question is relevant. The barrister wanting to ask the question makes his points. Then the other side makes theirs, and the barrister asking the question briefly replies. What of course this involved was essentially an argument between the barrister and the witness which the judge then had to rule on. In practice it meant that the cross-examination proceeded with abysmal slowness. It is much more difficult to berate a litigant in person from objecting than it is a lawyer (because the litigant may not be as familiar with the rules). If a barrister kept on making ridiculous objections to questions, he would soon find himself in serious trouble with the judge. The objections would be dealt with very swiftly. It is much harder to do that with a litigant in person because it is not clear whether the litigant understands why the objection may be incorrect, and the judge also needs to get to the bottom of what the objection truly is. Of course two consequences follow from making constant objections. Firstly it means that the purpose of the question has to be outlined so that the litigant had an opportunity to consider what it was aimed at, and in addition ended up having lots of time to think of an answer. It also meant that the questions proceeded with such slowness that the first four questions (all objected to) ended up taking an hour. Succeeding in cross-examination is not just about asking the right questions in the right order but about making sure that the pace of the examination proceeds in the right way at the right time. Slowing it right down to four questions per hour makes it about as effective as trying to sprint wearing diving boots. By the time the first four questions had elapsed the judge was apparently concerned about two things. Whether the case would be finished within a week rather than a month, and secondly whether this was all a tactical stunt by the litigant.

The next question sealed it. He was being asked to confirm whether he had been in a particular place at a particular time and whether he had seen a particular person. He raised all sorts of objections as to why it would be a breach of his rights to him to have to say what any such meeting involved. After extensive argument, the judge ruled that he must answer the question. The answer then was that he had never met the person at all. The objection had been on an entirely hypothetical basis (he never actually said that he had met the person, merely that it would be oppressive for him to have to answer the question if he had). The judge was in no mood to counter further objections after that.

We shall find out next week how the case finished.

Michael J. Booth QC