Rea v Rea & Ors

A trial is unfair where the judge’s conduct, assessed cumulatively, prevents a party from properly presenting its case and the judge from fairly evaluating it. The assessment is broader than isolated interventions, expressions of irritation or case-management errors. Fairness is distinct from bias. In proceedings involving litigants in person, the judge may adopt a flexible and inquisitorial role to assist proper presentation, provided neutrality is maintained and the judge does not become an advocate. Case management decisions attract substantial latitude, including limits on irrelevant or repetitive questioning. A reserved judgment cannot cure a trial that was unfairly conducted.

The defendants appealed from the decision of Deputy Master Arkush admitting their mother’s 2015 Will to probate. They appeared as litigants in person after their application for an adjournment and request for new representation had been refused. They alleged that the Deputy Master’s interventions, restrictions on questioning, refusal of further preparation time and comments about the strength and cost of the case rendered the trial unfair. The appeal was confined to that ground. The central issue was whether, viewed overall, the conduct of the five-day probate trial prevented the defendants from properly presenting their case.

1. Appeal dismissed. The trial was not unfair. The correct inquiry was an overall qualitative assessment of the trial process, rather than an isolated review of individual passages in the transcript.
2. Fairness in the conduct of a trial is distinct from bias. The absence of personal animus does not by itself answer the fairness question, but irritation, hostility or an erroneous case-management decision will not establish unfairness unless their cumulative effect prevents a party from properly presenting its case and the court from fairly appraising it.
3. The principles stated in Serafin v Malkiewicz [2020] UKSC 23 applied. The fact that a party is unrepresented may justify flexibility and assistance. It does not require the judge to permit irrelevant, repetitive or unprepared questioning. The judge must balance assistance to the litigant in person against neutrality, fairness to other parties and witnesses, and the efficient conduct of the trial.
4. The Deputy Master was entitled to refuse further preparation time, interpose professional witnesses, restrict questions about matters of limited relevance, and continue the evidence on the first day. Those were case-management decisions within the latitude ordinarily allowed to a trial judge. His later questioning of Rita Rea was directed to ensuring that the defendants’ case was properly put, rather than representing an improper descent into the arena.
5. The Deputy Master’s mistaken belief that certain matters had already been raised by the defendants was unfortunate, but did not cause overall unfairness. The medical records remained available for consideration, the relevant issues were explored, and the Deputy Master actively addressed any gaps in the defendants’ presentation.
6. The comments at the end of the first day were a permissible reality check about the evidence, costs and prospects, rather than proof that the case had been prejudged. The Deputy Master remained able to assess the evidence fairly. The appeal was therefore dismissed.

• High Court (Chancery Division): Appeal from the decision of Deputy Master Arkush dated 13 September 2019. The appeal was dismissed.