ADVOCACY THE JUDGE’S VIEW XVI: THE FUTILITY OF TRYING TO READ THE JUDGE’S BODY LANGUAGE

Many of the posts in this series revisit previous series on the judge’s view. This post looks at the recent case of Russell v Coulter (Rev1) [2025] EWHC 493 (KB). The judge made certain observations when disallowing the evidence of a witness who, among other things, proposed to give evidence about the way in which a judge had responded to submissions being made in an application for permission to appeal. As any advocate, with any experience at all will tell you,  it is unwise to rely on a “perception” as to how your submissions are being received.

(Some judges can be very stony faced…)

“Experience at the Bar shows that little is to be gained by guessing what is in a judge’s mind by seeking to assess his or her reactions including body language during submissions. More often than not, one is completely wrong. But in any event, such evidence is irrelevant.”

THE CASE

The claimant brought an action for professional negligence against the defendant barrister, alleging negligence in the conduct of a trial.  One of the witnesses the claimant called was someone who worked in the legal profession, Mr. Tilley.  His “statement” consisted of legal opinions on the acts of alleged negligence and subjective views of the witness as to how an application had been received by a judge.  The judge did not allow any part of the statement in evidence

THE JUDGMENT ON THE ATTEMPT TO GIVE EVIDENCE AS TO HOW SUBMISSIONS WERE RECEIVED AT AN APPLICATION FOR PERMISSION TO APPEAL

“… Mr Tilley’s subjective views of how his client’s arguments appeared to be going down with Burnett LJ during the oral application for permission are irrelevant. Experience at the Bar shows that little is to be gained by guessing what is in a judge’s mind by seeking to assess his or her reactions including body language during submissions. More often than not, one is completely wrong. But in any event, such evidence is irrelevant. It is the Permission Judgment which matters as a definitive record of Burnett LJ’s considered views. I strike out these additional parts of the statement under my powers in CPR 32.1 to control the evidence for trial.”