Cross-examination in Financial Remedy Claims

There’s a scene in the film When Harry Met Sally where the characters played by Carrie Fisher and Bruno Kirby argue about throwing out his wagon-wheel coffee table:

MARIE (Carrie Fisher) ‘I’m on your side. I’m just trying to help you have good taste’

JESS (Bruno Kirby) ‘I have good taste’

MARIE ‘Everybody thinks they have good taste and a sense of humour, but they couldn’t possibly all have good taste.’

As professional advocates, most of us think we’re good at cross-examination. After all, we’ve been taught the rudiments at law school and attended advocacy training. To varying degrees, we’ve done the job in court. We might not see ourselves as Edward Marshall Hall KC or George Carman QC redux, but most of us are quietly confident we know what we’re doing.

But there’s a world of difference between the experience of a seasoned criminal advocate, who cross-examines almost on a daily basis, and those of us who specialise in areas of law, such as financial remedies, commercial or Chancery, where most disputes settle. Accordingly, the opportunity to cross-examine arises only infrequently, whereby some practitioners can go years between trials,[[1]] not because they’re unsuccessful, but precisely because they are so adept at negotiating agreements. This article is not a call for more cases to fight. There is no question that most matrimonial clients are well advised to stay away from court where reasonably possible and not incur the financial cost and emotional ordeal of going to trial. Nevertheless, for good reason or bad: a significant issue of law or fact; one party’s unreasonable expectations; sometimes sheer bloody mindedness, some cases will go all the way. And to paraphrase Macbeth, if cross-examination has to take place, then it’s better if it’s done properly,[[2]] not in order to satisfy arcane professional rules, but in the interests of a fair hearing.

I don’t profess to be a master of the craft. Over the years I’ve spent a lot of time thinking about and planning how to cross-examine. As an advocate and as a tribunal, I’ve listened to a lot of cross-examination in the Family Court, Crown Court and county court: some very good and persuasive; some ineffective; some so bad it was positively counter-productive. Cross-examination is unquestionably difficult. It takes a lifetime to learn how to ask a series of closed questions that probe relevant evidence while controlling the witness’s responses and moving logically from one topic into another. It may no longer be the essential skill for a financial remedies specialist, but cross-examination can have a material impact on outcome, in terms of the court’s findings of fact and determination of issues. This article is written for the occasional cross-examiner, as an aide mémoire of the rules, and as a guide for those who want to do the job properly, as opposed to metaphorically clubbing a witness into submission.

What is good cross-examination?

There’s something about cross-examination that attracts sporting metaphors. I’ve heard it compared to cricket (fast bowling and spin bowling) martial arts (how many judgments complain that ‘the witness fenced with counsel’), and fishing, as in the following, unimprovable epigram from American trial lawyer, Louis Nizer:

‘In cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.’

While not all good cross-examination is alike, it tends to involve a series of concise, focused questions, which box in a witness before the critical question is put. The process flows logically from one subject onto the next. When the advocate gets the answer he or she wants, they move on swiftly, without repetition or comment. The advocate remains in control throughout and does not need to raise his or her voice. As John Mortimer QC, the author of Rumpole, once famously put it:

‘… “the art of cross-examination”, my father[[3]] told me, “Is not to examine crossly. It’s the art of leading the witness through a line of propositions he agrees to until he’s forced to agree to the one fatal question”’ (Clinging to the Wreckage, (1982))

Good cross-examination is carefully planned and structured, but great cross-examination conceals the structure, so that a witness answers each question on its merits, without anticipating the ultimate point, or foreseeing where is the forensic trap.

Bad cross-examination

Bad cross-examination involves what the Court of Appeal in R v Farooqi [2013] EWCA Crim 1649 described as a series of ‘… prolix, extensive, irrelevant, and, on occasions, offensive, [questions], the underlying purpose [of which] was not clear’ ([42]). The bad cross-examiner rapidly loses control of the witness, who can make hay with loosely phrased questions, talking around the subject and using up valuable court time. Where a witness says something significant, the bad advocate spoils its effect by resorting to amateur dramatics, slowly repeating the answer back for emphasis or ladling on the commentary. This not only irritates the judge, but it also tips off the witness, who might seek to correct what he’s just said. The bad advocate commits a series of cardinal sins: asking open questions; questions to which he or she doesn’t know the answer; putting one question too many; asking questions that are inappropriate, badgering, irrelevant, or which in reality are statements or submissions; thereby losing all control of the length and nature of the witness’s answers.

The role of cross-examination in financial remedies

Cross-examination plays a more limited role in financial remedies than in other areas of law. Under s 25(1) Matrimonial Causes Act 1973, the court has a duty to consider the relevant circumstances of the case, whereby it exercises a ‘quasi-inquisitorial’ role (Parra v Parra [2002] EWCA Civ 1886 at [22]). By contrast, most civil and criminal trials are purely adversarial in nature, and the judge’s role during evidence is closer to that of an impartial umpire.

In financial remedies, cross-examination might help the court resolve factual issues relating to housing need, access to resources, liquidity, etc. but it will rarely, if ever, deliver a knock-out blow to the claim, which does on occasion happen in civil (e.g. a claim under the Trusts of Land and Appointment of Trustees Act 1996 based primarily on recollection evidence) and in crime, where the undermining of prosecution witnesses might lead a submission of no case to answer: R v Galbraith [1981] 1 WLR 1039).

The judge’s duty in financial remedies to ‘… investigate issues which he considers relevant to outcome even if not advanced by either party’ (Parra at [22]) provides a safety net for the badly prepared case and the party who ‘fails to come up to proof’ in the witness box. Where an advocate neglects to cross-examine on a relevant issue, or where yawning gaps have emerged during cross-examination, the judge may feel duty bound to ask the witness further questions (often to the intense frustration of the cross-examining advocate), which undoes some of the damage, or fills the evidential void, in the interests of fairly resolving the case. Or the court may conclude that only limited weight should be attached to what a witness has said, or the witness’s demeanour in the witness box (see Lord Leggatt’s keynote speech to the At A Glance conference, ‘Would you believe it? The relevance of demeanour in assessing the truthfulness of witness testimony’, October 2022).

Rules of evidence do exist in financial remedies, but they are rarely enforced. The common law rule that an advocate should ‘put his case’[[4]] applies in the Family Court as elsewhere, but with notable leniency. Otherwise, hours of court time would be taken up by hearing a line-by-line challenge of a party’s schedule of outgoings. The court may be able to resolve such factual disputes based upon a combination of written evidence, submissions and a generous dose of common sense or ‘judicial notice’,[[5]] without hearing extensive, or indeed any, ‘banal cross-examination’ (e.g. ‘I suggest you don’t need £40 pm for hair products’, ‘You could live in that flat, couldn’t you?’, etc. In Finch v Baker [2021] EWCA Civ 72 Moylan LJ concluded that (at [42]):[[6]]

‘… A judge is well able to assess a party’s income needs without … them being subject to detailed cross-examination. The wife’s needs had clearly been put in issue by the husband (as referred to during the hearing before the Judge) and a judge is well-placed to assess what is achievable and what is fair without any such, frankly often banal, cross-examination.’

The Family Court’s approach to the rules of evidence and cross-examination has always been somewhat laissez faire. Advocates are routinely allowed to get away with questions and commentary that would not be permitted in the county court or Crown Court. When objection is taken to a question because it is irrelevant, unfair, badgering, confusingly compounded, etc. a judge is as likely to waive away that objection (‘let’s just get on with it shall we’) as uphold it, even when the objection is entirely correct in law. If the standards of cross-examination are lower in financial remedies than say in crime, this is not simply down to the advocates’ lack of practice. Professional standards atrophy where they are not consistently upheld and enforced.

Professional rules and guidance

Across the mists of time, most practitioners may recall the rules and conventions of cross-examination: don’t ask a question to which you don’t know the answer, make sure put your case, ask closed and leading questions, etc. However, the source of these rules and conventions is surprisingly difficult to find. Given how minutely other aspects of legal practice have been codified over the years, in procedural directions and practice guidance, it is surprising that so little is said in relation to cross-examination.

Professional rules

Barristers might assume that cross-examination is extensively covered by the Bar Council Code of Conduct. In fact, this document (which seems to have been structured by an alien life form, with paragraph numbers like ‘CD3’, ‘gC2’ or ‘rC3.2’) says remarkably little about how to cross-examine. The Conduct Rules (‘C’) contain the following high-level principles:

• A barrister’s ‘core duties’ include the ‘… duty to act with honesty and integrity’ (CD3), that ‘… you must not abuse your role as an advocate’ (rC3.2).
• This includes not asking a witness questions ‘… merely to insult, humiliate or annoy a witness …’ (rC7.1) (which might seem somewhat self-evident), and, more pertinently, not making ‘… a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination’ (rC7.2).
• A serious allegation must not be made against any person unless the advocate has ‘reasonable grounds for the allegation’ and that ‘the allegation is relevant to your client’s case or the credibility of a witness’ (rC7.3).

The Solicitors Regulation Authority website contains a more useful resource entitled ‘How to cross examine a witness’, which is a good starting point for any fledgling advocate. This identifies two key aims in cross-examination:

‘First, to advance your case by putting it to witnesses from the other side and getting them to say things which support your case. If you fail to put your case on a particular issue it may be assumed that you accept the other side’s account of that issue and you will not be able to put your account of it in your closing speech.

Second, to undermine the case of the other side by exposing weaknesses in the reliability and credibility of its evidence. This usually means attempting to show that a witness’ account is mistaken, inconsistent or deceitful.’

The SRA website also contains several other helpful pointers:

‘Your cross examination should remain fair, calm and composed so that the witness cooperates with you and to maintain your credibility as an advocate’

‘You should avoid commenting on the quality of a witness’s answer in cross examination or arguing with them about an answer you disagree with. This can undermine your credibility and make it harder to get the witness to cooperate.’

‘Carefully consider whether a leading or open question is more likely to generate valuable evidence on a particular factual matter.’

‘Keep questions short and clear by limiting them to one issue or query at a time.’

Practice area guidance

The compendious 2026 FRC Guide[[7]] does not cover cross-examination at all. This is curious since its predecessors, the 2016 HC Efficiency Statement,[[8]] and the 2002 FRC Efficiency Statement[[9]] contained the provision that ‘… when conducting cross-examination advocates must avoid assertion, comment and personal opinion’ (at paras 17 (HC) and 2 (below HC), respectively). While it can be difficult to draw a clear line between what amounts to impermissible comment or assertion, it might have been helpful to include some guidance as to standards of cross-examination.

In terms of the nuts and bolts of cross-examination, the most useful guide comes from an unexpected source: the Planning and Environmental Bar Association. The PEBA’s Good Practice Memorandum (No 2) concerns cross-examining experts in inquiries, but its checklist has general application (points 5 to 10 in particular) (my italics):

‘(1) Cross-examination should be focussed on the matters in issue between the parties;

(2) Providing the order of topics to be covered at the outset of the cross-examination can assist with time and document management;

(3) Where possible, questions should be kept short and directed to a single issue;

(4) Questions may be “closed” rather than “open”;

(5) During cross-examination, barristers should not “comment” on the answers given;

(6) Barristers should be courteous to the witness and avoid aggressive or bullying behaviour;

(7) Avoid repetitious questioning. Effectively repeating the same question more than three times in total, when a clear answer has been given, should generally be avoided;

(8) Barristers should not interrupt a witness answering the question put;

(9) Barristers should not deliberately misinterpret the answer given by a witness;

(10) Barristers should always be fair to the witness (e.g. avoid putting questions in a misleading context);

(11) Indicating to the witness when a document is no longer required can assist with document management;

(12) The length of cross-examination should always be proportionate to the importance of the issue and have regard to any time estimate provided and making the best use of inquiry time.

[…] matters of law are not for cross-examination but are for submissions in closing.’

Vulnerable witnesses

There is also plenty of guidance available in terms of cross-examining a vulnerable witness with autism, a learning disability or hidden disabilities.

Practitioners will be aware of the contents of FPR PD 3A and PD 3AA, which relate to vulnerability, grounds rules hearings and the various ways a court can proceed to ensure a witness’s best evidence is given. There are also two helpful websites relating to cross-examination of vulnerable witnesses:

(1) The Advocates Gateway contains a series of toolkits containing guidance on communicating with vulnerable witnesses, in order to promote high ethical and professional standards. There are 21 toolkits which are aimed mainly at criminal practice, although Toolkit 13 deals with vulnerable witnesses in the Family Court (also see Toolkit 13A which contains a crib sheet covering participation directions and intermediaries). Both are essential reading in any case involving vulnerability.

(2) The Inns of Court College of Advocacy Twenty Principles. While this also is concerned primarily with criminal trials, it contains useful guidance such as (8) signposting a new topic, (10) thinking about how to take the evidence, chronologically or in a structured way, (12) avoid statements posed as questions, (18) avoid multi-part ‘tag’ questions.

Guidance from case law

Court judgments rarely deal with standards of cross-examination. When writing a judgment, the judge normally has enough on his or her plate in terms of setting out the factual background, summarising the parties’ cases and, crucially, explaining findings of fact and decision. There is rarely the time or inclination to ‘mark the work’ of the advocates by surveying the conduct of cross-examination or providing more general guidance.

One leading exception is R v Farooqi [2013] EWFA Crim 1649, in which the Court of Appeal dismissed a criminal appeal in a terrorism case, but was extremely critical of the ‘… flagrant misconduct and alleged professional incompetence by one of the advocates at trial’. While this judgment primarily concerns criminal practice, the following observations of the Lord Chief Justice, Lord Judge are relevant more generally:

‘107. The question was raised whether [counsel] discussed his proposed forensic strategy with his client. However, whether he did or not, and even assuming that his client agreed or encouraged it, the client’s “instructions” were irrelevant. The client does not conduct the case: that is the responsibility of the trial advocate. The client’s instructions which bind the advocate and which form the basis for the defence case at trial, are his account of the relevant facts: in short, the instructions are what the client says happened and what he asserts the truth to be. These bind the advocate: he does not invent or suggest a different account of the facts which may provide the client with a better defence.

108. Something of a myth about the meaning of the client’s “instructions” has developed. As we have said, the client does not conduct the case. The advocate is not the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client, or when the advocate is a barrister, the solicitor “instructs” him. In short, the advocate is bound to advance the defendant’s case on the basis that what his client tells him is the truth, but save for well-established principles, like the personal responsibility of the defendant to enter his own plea, and to make his own decision whether to give evidence, and perhaps whether a witness who appears to be able to give relevant admissible evidence favourable to the defendant should or should not be called, the advocate, and the advocate alone remains responsible for the forensic decisions and strategy. That is the foundation for the right to appear as an advocate, with the privileges and responsibilities of advocates and as an advocate, burdened with twin responsibilities, both to the client and to the court.

109. In the trial process the advocate is subject to some elementary rules. …

111. The advocate cannot give evidence or, in the guise of a submission to the jury, make assertions about facts which had not been adduced in evidence. That is inconsistent with the proper function of an advocate …

113. We do not suggest that the principle of fairness to the witness requires the somewhat dated formulaic use of the word “put” as integral to the process. Assuming that there is material to justify the allegation, “Were you driving at 120 mph?” is more effective than, “I put it you, that you were driving at 120 mph?” What ought to be avoided is the increasing modern habit of assertion, (often in tendentious terms or incorporating comment), which is not true cross-examination. This is unfair to the witness and blurs the line from a jury’s perspective between evidence from the witness and inadmissible comment from the advocate… we deprecate the increasing habit of comment or assertion whether in examination in chief, but more particularly in cross-examination. The place for comment or assertion, provided a proper foundation has been laid or fairly arises from the evidence, is during closing submissions to the jury.’ (emphasis added)

Farooqi has been cited in several family and Court of Protection cases, such as Re PB [2014] EWCOP 14, in which Parker J, who insisted that cross-examination questions should always be short (no more than seven or eight words), underlined the importance of careful preparation, short questions and that it was the advocate’s responsibility to control the length of the witness’s answers:

‘141. Effective steps must be taken to reduce evidence to the essential. In Farooqi Lord Judge emphasised the requirement that cross-examination should proceed by short, focussed question rather than by comment, opinion and assertion. I also note that in The Law Commission lecture given last year Lord Judge stated (as I was taught) that in principle no question should be longer than one line of transcript. In any event, the judge is interested in the answer, not the question.

142. Advocates need to be able to control the witness by the form and structure of their questions and not permit discursive replies or to allow the witness to ramble (particularly if the witness has the tendency to be prolix). There is no necessity for a long introduction: apart from anything else it may distract and confuse the witness and the judge.

143. Examination must not proceed by way of “exploration” of the evidence: i.e. a debate, or by putting theory or speculation, rather than by properly directed questions which require an answer.

144. This is all the advocates’ responsibility ….’

Practitioners should also be aware of the following judicial observations about cross-examination:

‘… mere comments by representatives under the guise of questioning of a party or witness are not appropriate. They are forbidden by the most elementary principles and rules of advocacy.’: Wagner v Secretary of State for the Home Department [2015] UKUT 655 at [10] per McClosky J.

‘… To be frank, cross-examination is often a largely pointless and futile exercise if it amounts to little more than counsel putting disputed facts to a witness. It is a dispiriting and largely useless experience for a judge to listen (often through translators) to lengthy cross-examination of a witness along those lines … It is a very rare case where, without having been confronted by the documentary record or known or probable facts, a witness nonetheless collapses under cross-examination and admits that his witness statement is untrue.’: AO v LA [2023] EWHC 83 (Fam) at [60]–[61] per Mostyn J.

Conclusion

Rather than layer my own commentary on the guidance summarised above, I would like to conclude by offering a handful of practical suggestions which I’ve found useful in preparing cross-examination.

(1) Start with a pencil and paper

When it comes to thinking creatively, and planning cross-examination is a creative mental process, there’s something freeing about starting with a blank sheet of paper and a pencil or several pens of different colours, and being able to create a mind map, as opposed to typing on a computer. Over the years I have wasted a lot of time typing out cross-examination notes only to find I get blocked or get too drawn into the minutiae. Start with a piece of paper, if only to work out the main topics, and how one will flow into another. When you have this in mind, by all means, type out the more detailed questions (especially if, like me, your handwriting is totally illegible).

(2) Preparation

This is both an obvious and somewhat tedious point to underline: with cross-examination, the devil is in the detail and careful preparation is essential. While some advocates seem to have been blessed with an innate ability to cross-examine, good preparation generally beats natural talent. This blessing often turns into a curse: those who can wing it are increasingly tempted to wing it.

The best points in cross-examination often derive not from the main witness statements and expert reports (which everyone will have read) but the exhibits and attachments (which the judge probably has not read, and which your opponent might have overlooked). The Pulitzer Prize winning biographer Robert Caro has a personal mantra: ‘Turn Every Page’. This applies to cross-examination as much as it applies to research.

The extent to which you write out questions in long hand is a matter of personal preference. In interview,[[10]] Sir Nicholas Mostyn gave the following guidance:

‘Cross examination is the way, and the platform where, you can put your case again and again and drill it into the judge’s head. If the witness gives an unsatisfactory answer for you, just ignore it and move on to the next question. Get the next question in. Get the questions, which is your case, into the judge’s head. It’s the questions that matter. The second thing: write out your cross-examination. My cross-examinations would always be: ‘Question … if he answers this, then ask this; if he answers that, then ask that question’. It would all be planned out in a flow chart, with every possible answer that the witness could give, because of course you happen to know all the answers, don’t you? … ‘Third of all, never, ever, ever ask compound questions. The judge will not remember any part of them at all.’

For myself, I tend to allow for a bit more flexibility. Cross-examination is not a scientific process. Witnesses say unexpected things under pressure and sometimes there is good reason to pursue unexpected statements (albeit, within reason: see point (6), below). As to timing of when to prepare, I find it much easier to plan cross-examination in the early morning than in the evening. It is extraordinary how a good night’s sleep can clear the mind in terms of structuring cross-examination notes.

(3) Work backwards

For those starting in practice, planning cross-examination can be overwhelming. There is so much material. Where to start? I would suggest that, as a first stage, you work out what you want to say in closing submissions. Once you have established the dozen or so main submissions you want to make, and your overall ‘theory of the case’, use these to plan your cross-examination. What questions do you need to ask to support each submission (or to deal with the arguments your opponent is likely to make). If there is no connection between a question and either your submissions or the other party’s case, cut the question – or put it on a separate page, so you have it in reserve if needed. It is particularly important at a hearing where court time is limited (and court time normally is limited at trial) to ensure you don’t waste time in cross-examination pursuing lines of inquiry which might be interesting, but which lead nowhere in terms of closing submissions.

(4) Close your questions

Every advocate has had the frustrating experience of the rambling witness. Sometimes this is down to a witness’s nerves, in other cases this might involve a defensive and canny witness who deliberately filibusters to blunt the point of your questions. It is the advocate’s responsibility to control the evidence (see Re PB above), and the best way to do this with a difficult witness is to ask a series of tightly closed, leading questions: ‘You’re not saying this, are you?’, ‘And you’re not saying that?’, ‘And you wouldn’t be arguing for that?’, ‘So would you agree with me that … ?’. Done well, this takes the wind out of even the most difficult witness’s sails (yet another sporting metaphor).

By contrast, it is dangerous to the point of professional incompetence to ask open questions such as ‘What do you say about …?’ or ‘Why didn’t you do that?’. Some witnesses might respond by giving a lengthy, narrative answer which you might not be able to curtail, so long as the answer relates to the question put. Your opposing advocate may also be wily enough to make hay with such loosely phrased questions in re-examination (‘You were asked what do you say about … why don’t you tell the court in your own words …?’).

(5) Persuasive as opposed to direct cross-examination

In Aesop’s Fable, The North Wind and the Sun, the wind and the sun compete to remove a traveller’s cloak. The wind used force but the harder it blew, the tighter the man clung to his coat, whereas the warmth of the sun caused the man to remove it. The point being that persuasion achieves a lot more than direct force.

It can be surprising how, even in the most contentious cases, witnesses are willing to make reasonable concessions provided the questions are reasonably put, and the witness is not taken as a fool or worse. Bear in mind that many witnesses genuinely find the experience of being cross-examined to be highly confusing, to the extent that they might attack innocuous questions raised by their own counsel in chief, as if the advocate had somehow changed sides.

Before you ‘go direct’ with a witness, consider whether it might first be worth gently exploring some of the less obviously contentious issues (e.g. ‘You want to go back to work don’t you?’, ‘Would it be reasonable to assume this will happen by x?’, ‘How much would you earn?’, ‘Would you be able to live outside Kensington and Chelsea?’). This is not an invariable rule: some witnesses enter the box with the battle-hardened determination to not concede an inch. But many witnesses want to appear reasonable in front of a judge and may be more susceptible to respectful questions. This also raises a matter of structure: sometimes it’s best to start where you think the witness might offer helpful answers, before you turn to more contentious items, where the witness might become more defensive and clam up.

(6) Resist temptation

In cross-examination, temptation is everywhere. The temptation to gild the lily, by asking one question too many; the temptation to play to the gallery, to be your client’s white knight; the temptation to stray from your carefully prepared notes and chase metaphorical rabbits down the rabbit hole.

To say that advocates must resist all the above temptations would be a counsel of perfection. Everyone does this in practice. It is extremely difficult to plan for every eventuality in cross-examination, when in truth no one really knows precisely what a witness is going to say to any given question. But cross-examination will generally go better if you can control your impulses and resist the temptation to stray into commentary or submissions. This is particularly so where the advocate can remain physically still, without fidgeting, while maintaining a courteous and steady tone, without raising one’s voice or adopting a hectoring tone.

In real life there are very few ‘gotcha’ moments in court, in terms of a witness giving a truly damaging answer. When it does happen, it’s far more impressive to take a careful note and move on, rather than pantomiming your response, or asking one question too many, which lets the witness off the hook. Pick up the point in closing. Allow for the evidence to have a delayed effect; acting like a depth charge.

(7) Silence

Finally, a semi-serious point.

It is a slightly depressing aspect of an advocate’s job to find that the most helpful answer in cross-examination came, not in response to one of your carefully crafted questions, but when you’d lost your place, paused, and the witness has felt the need to keep talking to fill the silence. It is remarkable how often this happens in court, not because the advocate is doing this deliberately, but because he or she can’t find a page reference. The serious point is to listen carefully to what has been said, and on occasion to allow a pregnant pause to develop if you think the witness might keep talking.

Further reading

Richard du Cann QC, The Art of the Advocate (Penguin 1993).

Dominic Carman, No Ordinary Man (Hodder & Stoughton Ltd, 2002).

Thomas Grant KC, Court Number One (John Murray, 2019)

Thomas Grant KC, Jeremy Hutchinson’s Case Histories (John Murray, 2015).

Thomas Grant KC, The Mandela Brief (John Murray, 2022).

Iain Morley, The Devil’s Advocate (Sweet & Maxwell, 2015).

John Mortimer QC, Rumpole, Clinging to the Wreckage (Penguin, 1986).

David Pannick QC, Advocates (Oxford University Press, 1992).

Keble Advanced Advocacy Course, Inner Temple, https://www.innertemple.org.uk/membership-services-support/financial-support-members/keble-advanced-advocacy-course/.

[[1]]: Technically speaking, financial remedy claims are set down for ‘final hearing’ not ‘trial’. However, I use the generic term ‘trial’ in this article.

[[2]]: ‘If it were done when ’tis done, then ’twere well/It were done quickly’ (Macbeth, Act I, Scene 7).

[[3]]: Clifford Mortimer, formerly of this parish, in terms of Mr Mortimer senior having practiced in matrimonial cases and published the very long Clifford on Probate, before going blind. Played memorably by Laurence Olivier in the TV adaptation of ‘A Voyage Round My Father’.

[[4]]: Browne v Dunn (1863) R 69, Griffiths v TUI (UK) Ltd [2023] UKSC 48.

[[5]]: I.e. the rule of evidence that the court may take into account something that is generally well-known and established, without needing to hear evidence on the point. ‘Judges are entitled and bound to take judicial notice of that which is the common knowledge of the great majority of mankind and of the greater majority of men of business’: R v Aspinall (1876) 3 QBD 48 at 61–62 per Brett JA.

[[6]]: With thanks to Rhys Taylor for drawing my attention to this decision.

[[7]]: The Financial Remedies Court of England & Wales: Financial Remedies Guide (March 2026), www.judiciary.uk/guidance-and-resources/financial-remedies-guide-2026/

[[8]]: Statement on the efficient conduct of financial remedy hearings allocated to a High Court Judge whether sitting at the Royal Courts of Justice or elsewhere (revised 1 February 2016), https://financialremediesjournal.com/content/images/2025/07/2016-hc-efficiency-statement.pdf

[[9]]: Statement on the Efficient Conduct of Financial Remedy Hearings proceeding in the Financial Remedies Court below High Court Judge level (issued 11 January 2022), www.29br.co.uk/images/uploads/documents/FRC_Efficiency_Statement_11.01.22.pdf

[[10]]: ‘Interview with Mr Justice Mostyn – rules and woolly discretion’, [2023] 2 FRJ 89.

This is an article from the forthcoming Financial Remedies Journal 2026 Issue 2.