R (Children), Re

A party’s dissatisfaction with the exclusion of evidence does not justify appellate intervention in a trial judge’s case-management decision. The judge has a wide discretion to control evidence, witnesses, adjournments and timetables. The Court of Appeal should not revisit a conventional discretionary order absent circumstances amounting to transparent judicial misconduct. Case management may be conducted flexibly, including by telephone, where the procedure causes no fundamental unfairness. This restraint applies particularly where the substantive judgment has not been delivered or the trial has not begun.

Mr R sought permission to appeal from orders made by Mr Justice Singer during complex proceedings involving his former wife. In the ancillary-relief proceedings, following a 23-day hearing and before judgment was delivered, the judge refused most of Mr R’s applications to adduce further evidence. The application was heard by telephone because the judge was sitting outside London. In separate Children Act proceedings, the judge conducted a pre-trial review, controlled the proposed evidence, refused certain witness statements, audio and video tapes and an adjournment, and set a provisional timetable. The central issue was whether the Court of Appeal should interfere with those discretionary procedural decisions before substantive judgments had been delivered.

Both applications for permission to appeal were dismissed.

1. Ancillary-relief proceedings. The use of a telephone link between the parties, the judge and the wife’s representative was not fundamentally unfair. Case-management procedures must operate flexibly, and modern technology may properly be used where it avoids unnecessary expense and inconvenience.
2. The decision whether additional evidence is relevant or helpful after the completion of a trial lies principally with the trial judge. The discretion is particularly wide while the judge is formulating a reserved judgment. The Court of Appeal would not impose an obligation to receive further material merely because a party considered it relevant, unless the circumstances amounted to transparent judicial misconduct. No such evidence existed.
3. Children Act proceedings. Judges have a particular responsibility to impose firm control over preparation and trial. They must manage witnesses, evidence, adjournments and timetables so that the allotted hearing is used productively and effectively. It would be unprincipled to review a conventional discretionary case-management order of that kind on a permission application.
4. The trial judge was better placed to assess the developing issues and the proposed tapes and witness evidence. The order contained some flexibility concerning further witnesses, although the possibility of reconsidering other evidence depended on the order’s terms. The absence of a substantive judgment, and the fact that the children proceedings had not yet begun, provided an additional reason for refusing permission.

1. Court of Appeal (Civil Division): On 11 May 2001, dismissed both applications for permission to appeal.
2. Family Division: Mr Justice Singer made case-management orders in the ancillary-relief and Children Act proceedings, including refusal of most applications to adduce further evidence, refusal of an adjournment, and directions for the forthcoming trial.