Ruling in Rea and Others v Rea [2022] EWCA Civ 195, All ER (D) 91 (Feb), the court sent a wills dispute brought by the children of Anna Rea back to the High Court for retrial. A transcript of part of the hearing shows the Deputy Master intervening to ask questions of the daughter, who was represented by counsel, on behalf of the brothers, who were unrepresented.
Giving the main judgment, Lord Justice Snowden said the appeal arose ‘as a result of a genuine mistake by the Deputy Master’ in restricting the appellants from cross-examining the respondent on certain key matters. It was accepted that the Deputy Master had not been biased or exhibited any hostility or ill-will towards the appellants, in fact taking ‘various steps during the hearing’ to assist them to present their case. Snowden J said the issue at stake was ‘essentially whether those steps remedied the prejudice caused by the Deputy Master's earlier mistake, so that, taken as a whole, the trial was fair’.
He highlighted that the civil litigation system is adversarial not inquisitorial, and there is a ‘world of difference’ between the type of questions asked in examination-in-chief and those asked in cross-examination. Therefore, the Deputy Master should not have intervened to say the questions had already been asked and the appellants had little to gain from going over the same ground.
Giving judgment, Lord Justice Lewison said: ‘The outcome is a tragedy for the whole family.
‘The tangible benefits deriving from the relatively modest estate will have been seriously depleted by the costs of the original trial and the appeal. A further trial may well exhaust them completely. Like Snowden LJ, I urge the family to do everything possible to arrive at a consensual solution.’
