A County Court judge hearing a property dispute, while “regrettably sarcastic”, was “justifiably irritated” by a lawyer making a case to him, a High Court judge ruled this week.
The judgment, which was handed down via Skype and disseminated using e-mail due to the Covid-19 pandemic, examines just how brusque a judge is entitled to be.
The case centres on a dispute between buy-to-let property owners Mark and Hazel Steeds and their creditor Promontoria (Cheshunt) Limited.
According to the ruling, the Steeds borrowed more than £1.6m from the Clydesdale Bank to fund their business. When the loans fell into arrears in 201,5 Clydesdale “purported” to assign its interest in the loans to Promontoria which, in 2017, began to take proceedings against the Steeds.
The proceedings became a dispute over whether Promontoria has a good title to enforce the loan agreements, which led to a disclosure battle and a ruling from Coventry County Court judge, HH Judge Gregory that went against the Steeds. The Steeds changed their lawyer and appealed to the High Court.
And, at a High Court hearing for in December, lawyers for the Steeds argued that Judge Gregory hadn’t allowed their counsel to address the court properly and had shown bias.
High Court Judge Mr Justice Pepperall, hearing the case, decided to listen to a recording of the County Court case, which caused a delay, and gave judgment this week.
At the hearing, he said in his ruling, the Steeds’ new lawyer said Judge Gregory’s “interventions were hostile and sought to embarrass and belittle counsel. She was, he submitted, prevented from properly developing the Steeds’ case and left shaking when she left court.”
Promontoria’s lawyer, who had attended the earlier hearing, said the judge was “forthright” and “justifiably irritated when counsel persisted, despite his clear indication that she should not, in mounting an improper attack upon [a court order in the case that] should have been done by way of appeal.”
“Judges do not have to sit mute and allow parties to address the court without restriction,” Pepperall J said in his ruling.
“They can and should intervene to ensure that proceedings are conducted efficiently and that submissions remain relevant,” he said.
“Judges can test and challenge submissions; indeed, doing so can be a very useful tool in the adjudicative process. Judges can be robust, particularly with professional advocates, if bad points are taken, if counsel is clearly not properly prepared or strays from matters that are relevant and in evidence or does not move on when asked to do so.”
“There are, however, limits to judicial intervention,” he said.
“Whatever the merits of a party’s case, it is plainly wrong and thoroughly distasteful for a judge to bully any lawyer, party, witness or other participant in court proceedings. A judge’s duty is to ensure that proceedings are conducted fairly and that a case is not decided against a party without allowing the party a proper opportunity to put his or her case. It is obvious that judges must be impartial, but it is also important that they should not conduct themselves so as to give the appearance of bias.”
“I listened to the recording in this case because I was concerned as to the sharpness of some of the exchanges between the judge and counsel.”
And, in his judgment, “the judge was justifiably irritated that counsel persisted in mounting an improper collateral challenge to the deputy district judge’s order.
“Counsel was, I regret to observe, slightly flat-footed in persisting in the submission and in failing either to move on or explain clearly to the judge how such argument remained open to her clients.”
“Perhaps because he was not bowled over by either her advocacy or the quality of her submissions the judge was, regrettably, somewhat sarcastic and patronising towards counsel. She cannot have found this an easy hearing and I am very sorry to hear that she was left upset by the encounter.
“Having, however, considered the transcript and recording with care together with counsel’s written arguments, I am satisfied that she was able to make her submissions.”
He dismissed the application for permission to appeal.
Promontoria (Chesnut) Limited v (1) Mark Adrian Grosvenor Lloyd Steeds (2) Hazel Rosemary Steeds
High Court (Pepperall J) 25 March 2020
Graham Sellers (instructed by Joanna Connolly Solicitors) for the Appellants James McWilliams (instructed by Addleshaw Goddard LLP) for the Respondent
