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Henry King and Simon Paul explore how shared cross-examination could expand opportunities for junior trial advocates, with reference to practice in other jurisdictions
In the course of the discussion at the recent COMBAR North America meeting in Washington DC concerning the expansion of advocacy opportunities for junior counsel – as noted in this issue (see "Mind the gap") – support was expressed for giving junior lawyers discrete issues on which to conduct cross-examination.
Some concern was expressed at the meeting as to whether it was proper for the same witness to be exposed to cross-examination by more than one counsel for the same party. The practice is not unheard of – our own experience of it in the Commercial Court includes instances both where a witness has written two separate expert reports on different topics (Deutsche Bank AG v Sebastian Holdings Inc [2013] EWHC 3463 (Comm)) and where one report could be divided into separate topics (Borealis AB v Geogas Trading SA [2011] 1 Lloyd’s Rep 482) – but given the concerns expressed, we thought it worth drawing together what guidance there is on this practice.
Just as an opening or closing speech can be divided into topics allocated to different counsel, there can be good practical reasons to do this with a cross-examination. Forensically, there are the same advantages and disadvantages as with division of an oral submission (on the one hand, the message that a topic is something of a side-show and will be dealt with by a junior member of the team; on the other hand, most obviously, the risk of contradiction: see e.g. Three Rivers District Council v Bank of England [2006] EWHC 816 (Comm) at [69] where the trial judge described it as “a singular feature of the case” that “two leading Counsel for the Claimants had made diametrically opposed submissions as to the principal legal issue in the case” in the course of their opening speech).
English law
There appears to be no recent authority in which this issue has been considered. Two 19th century authorities are particularly relevant. In Doe v Roe (1809) 2 Camp. 278, leading counsel sought to intervene during an unsuccessful cross-examination by his junior. In responding to the other side’s objection that this was impermissible, Lord Ellenborough held (at p281):
In Chippendale v Masson (1815) 4 Camp. 174, the issue was whether counsel representing defendants with the same interest could separately cross-examine a witness/address the jury. Gibbs CJ held “the interests of the defendants being the same” he could only hear one counsel. In particular, where several defendants appear in the same interest, it is only the counsel “who happens to be senior” that can address the jury, and witnesses are to be “examined by counsel successively, in the same manner as if the defence were joint and not separate” (p175).
Whilst these authorities might be relied on in support of a restrictive rule, in our view both are likely to be of limited assistance to a modern court in resolving this issue. The “rule of convenience” alluded to by Lord Ellenborough in Doe v Roe appears to be directed at protecting witnesses from excessive cross-examination, which can be achieved (as in Australia and Canada, considered further below) by ensuring there is no overlap. Likewise, Chippendale v Masson concerned the different issue of separately represented defendants with identical interests.
As such, these authorities should not prevent the court from adopting such a procedure in its discretion, provided it does so consistently with the overriding objective and its common law/Article 6 ECHR obligations to ensure a fair trial.
Australia
The most extensive judicial consideration of this issue has been in Australia. In GPI Leisure Corp. Ltd v Herdsman Investments Pty Ltd (No. 3) (1990) 20 NSWLR 15, Young J rejected the cross-claimant’s submission that there was a general rule whereby only the most senior of the counsel representing parties with the same interest may cross-examine. In particular:
In Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125, senior counsel withdrew during cross-examination of a witness (apparently due to non-payment of fees), and the trial judge rejected the junior’s request to continue, undertaking not to overlap with his leader’s questions, as he had demonstrated no “special circumstances” that would justify such a course [40]-[41]. The Federal Court held that the trial judge had been wrong to do so, as he should have determined the question “having regard to the interests of justice and the need to ensure a fair trial”, rather than requiring special circumstances [47].
The court specifically noted at [45] that although “the common law frowns upon cross-examination by multiple counsel because of the possibility of oppression”:
“Naturally the common law rule is subject to reasonable exceptions. One exception arises from the changing nature of litigation. A common feature of modern commercial litigation is for counsel on one side of the record to split their trial preparation on a topic by topic basis…with the judge permitting both cross-examination and submissions to be divided so that counsel can deal with his/her assigned topic: …. This can be an extremely efficient way in which to conduct complex litigation. All the judge need do in such circumstances is ensure there is no unfairness to the witness: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, 22-23”.
Canada
The position appears to be similar in Canada. In Omnia Pelts Inc. v Canadian Pacific Airlines Ltd et al [1986] O.J. No. 1312, 57 OR (2d) 568 at 569, the Ontario High Court of Justice held that such a procedure “is allowable in the discretion of the trial judge, provided:
Singapore
The Legal Profession (Professional Conduct) Rules and related practice directions provide that cross-examination can only be conducted by one counsel per party, unless permission is granted by the court on application. In particular, the practice directions provide:
The SICC Rules/Practice Directions are silent, suggesting that the above procedure applies in the new Singapore International Commercial Court.
New Zealand and Hong Kong
There appears to be no modern authority in either of these jurisdictions. In New Zealand, the Evidence Act 2006 and the High Court Rules are silent, but appear to provide the court with wide powers to control its procedure. Cross on Evidence (8th New Zealand Edit.) suggests that it may be permitted “where the case is of some complexity and the cross-examination can conveniently be split” (p.283). The Hong Kong Civil Court Practice (1999) makes no reference to the issue; and Halsbury’s Laws of Hong Kong (at 240.217) refers to Doe v Roe as authority for the proposition that a leader may interpose during cross-examination of a junior, but includes no further consideration.
Conclusion
It thus appears that there is no common law rule prohibiting judges in England and Wales at their discretion from allowing cross-examination of a witness to be split between leading and junior counsel on an issue basis, as is the case in Australia and Canada. Provided any such procedures do not result in unfairness to the other party, they fall within the Court’s power to control its own procedure.
As a matter of procedure, it will be wise to raise the matter with the other parties and the Court at an early stage, so that there is no element of surprise, and that assurances can be given that there will be no overlap. With those safeguards, a wider adoption of a topic-based division of cross-examination would not only be an extremely efficient way to conduct complex litigation, as noted 25 years ago in Australia, but would expand considerably the opportunities for junior trial advocates for cross-examination at the highest levels.
Just as an opening or closing speech can be divided into topics allocated to different counsel, there can be good practical reasons to do this with a cross-examination
Contributors Henry King is a tenant and Simon Paul is a pupil at Fountain Court Chambers
Henry is a barrister at Fountain Court Chambers. He was Called to the Bar in 1998 and practises in commercial, banking and regulatory law.
Simon is a pupil at Fountain Court Chambers. He studied philosophy at the LSE and Cambridge and has an LLM from Harvard Law School.
Some concern was expressed at the meeting as to whether it was proper for the same witness to be exposed to cross-examination by more than one counsel for the same party. The practice is not unheard of – our own experience of it in the Commercial Court includes instances both where a witness has written two separate expert reports on different topics (Deutsche Bank AG v Sebastian Holdings Inc [2013] EWHC 3463 (Comm)) and where one report could be divided into separate topics (Borealis AB v Geogas Trading SA [2011] 1 Lloyd’s Rep 482) – but given the concerns expressed, we thought it worth drawing together what guidance there is on this practice.
Just as an opening or closing speech can be divided into topics allocated to different counsel, there can be good practical reasons to do this with a cross-examination. Forensically, there are the same advantages and disadvantages as with division of an oral submission (on the one hand, the message that a topic is something of a side-show and will be dealt with by a junior member of the team; on the other hand, most obviously, the risk of contradiction: see e.g. Three Rivers District Council v Bank of England [2006] EWHC 816 (Comm) at [69] where the trial judge described it as “a singular feature of the case” that “two leading Counsel for the Claimants had made diametrically opposed submissions as to the principal legal issue in the case” in the course of their opening speech).
English law
There appears to be no recent authority in which this issue has been considered. Two 19th century authorities are particularly relevant. In Doe v Roe (1809) 2 Camp. 278, leading counsel sought to intervene during an unsuccessful cross-examination by his junior. In responding to the other side’s objection that this was impermissible, Lord Ellenborough held (at p281):
In Chippendale v Masson (1815) 4 Camp. 174, the issue was whether counsel representing defendants with the same interest could separately cross-examine a witness/address the jury. Gibbs CJ held “the interests of the defendants being the same” he could only hear one counsel. In particular, where several defendants appear in the same interest, it is only the counsel “who happens to be senior” that can address the jury, and witnesses are to be “examined by counsel successively, in the same manner as if the defence were joint and not separate” (p175).
Whilst these authorities might be relied on in support of a restrictive rule, in our view both are likely to be of limited assistance to a modern court in resolving this issue. The “rule of convenience” alluded to by Lord Ellenborough in Doe v Roe appears to be directed at protecting witnesses from excessive cross-examination, which can be achieved (as in Australia and Canada, considered further below) by ensuring there is no overlap. Likewise, Chippendale v Masson concerned the different issue of separately represented defendants with identical interests.
As such, these authorities should not prevent the court from adopting such a procedure in its discretion, provided it does so consistently with the overriding objective and its common law/Article 6 ECHR obligations to ensure a fair trial.
Australia
The most extensive judicial consideration of this issue has been in Australia. In GPI Leisure Corp. Ltd v Herdsman Investments Pty Ltd (No. 3) (1990) 20 NSWLR 15, Young J rejected the cross-claimant’s submission that there was a general rule whereby only the most senior of the counsel representing parties with the same interest may cross-examine. In particular:
In Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125, senior counsel withdrew during cross-examination of a witness (apparently due to non-payment of fees), and the trial judge rejected the junior’s request to continue, undertaking not to overlap with his leader’s questions, as he had demonstrated no “special circumstances” that would justify such a course [40]-[41]. The Federal Court held that the trial judge had been wrong to do so, as he should have determined the question “having regard to the interests of justice and the need to ensure a fair trial”, rather than requiring special circumstances [47].
The court specifically noted at [45] that although “the common law frowns upon cross-examination by multiple counsel because of the possibility of oppression”:
“Naturally the common law rule is subject to reasonable exceptions. One exception arises from the changing nature of litigation. A common feature of modern commercial litigation is for counsel on one side of the record to split their trial preparation on a topic by topic basis…with the judge permitting both cross-examination and submissions to be divided so that counsel can deal with his/her assigned topic: …. This can be an extremely efficient way in which to conduct complex litigation. All the judge need do in such circumstances is ensure there is no unfairness to the witness: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, 22-23”.
Canada
The position appears to be similar in Canada. In Omnia Pelts Inc. v Canadian Pacific Airlines Ltd et al [1986] O.J. No. 1312, 57 OR (2d) 568 at 569, the Ontario High Court of Justice held that such a procedure “is allowable in the discretion of the trial judge, provided:
Singapore
The Legal Profession (Professional Conduct) Rules and related practice directions provide that cross-examination can only be conducted by one counsel per party, unless permission is granted by the court on application. In particular, the practice directions provide:
The SICC Rules/Practice Directions are silent, suggesting that the above procedure applies in the new Singapore International Commercial Court.
New Zealand and Hong Kong
There appears to be no modern authority in either of these jurisdictions. In New Zealand, the Evidence Act 2006 and the High Court Rules are silent, but appear to provide the court with wide powers to control its procedure. Cross on Evidence (8th New Zealand Edit.) suggests that it may be permitted “where the case is of some complexity and the cross-examination can conveniently be split” (p.283). The Hong Kong Civil Court Practice (1999) makes no reference to the issue; and Halsbury’s Laws of Hong Kong (at 240.217) refers to Doe v Roe as authority for the proposition that a leader may interpose during cross-examination of a junior, but includes no further consideration.
Conclusion
It thus appears that there is no common law rule prohibiting judges in England and Wales at their discretion from allowing cross-examination of a witness to be split between leading and junior counsel on an issue basis, as is the case in Australia and Canada. Provided any such procedures do not result in unfairness to the other party, they fall within the Court’s power to control its own procedure.
As a matter of procedure, it will be wise to raise the matter with the other parties and the Court at an early stage, so that there is no element of surprise, and that assurances can be given that there will be no overlap. With those safeguards, a wider adoption of a topic-based division of cross-examination would not only be an extremely efficient way to conduct complex litigation, as noted 25 years ago in Australia, but would expand considerably the opportunities for junior trial advocates for cross-examination at the highest levels.
Just as an opening or closing speech can be divided into topics allocated to different counsel, there can be good practical reasons to do this with a cross-examination
Contributors Henry King is a tenant and Simon Paul is a pupil at Fountain Court Chambers
Henry King and Simon Paul explore how shared cross-examination could expand opportunities for junior trial advocates, with reference to practice in other jurisdictions
In the course of the discussion at the recent COMBAR North America meeting in Washington DC concerning the expansion of advocacy opportunities for junior counsel – as noted in this issue (see "Mind the gap") – support was expressed for giving junior lawyers discrete issues on which to conduct cross-examination.
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