Can the Judge, Lay Justices or Clerk Conduct Cross-Examination?

Short answer: be careful. If your QLR (Qualified Legal Representative) hasn’t been allocated, the judge, lay bench or clerk should not step in to “do the cross-examination” for a party. That risks fairness and independence. The rules are clear: PD3AB §5.3 says a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party. If you discover on the day that no QLR is available, stay calm, put it on the record, and insist on a fair process.

👉 You might also find this helpful: When There’s No QLR at Your Non-Molestation Fact-Finding Hearing and What to Do If You Feel You Were Mistreated by a Judge or Lay Justice. If you’re reading this after experiencing unfairness, you likely have at least one good ground to appeal—contact me to arrange a consultation.

Can a Judge do cross-examination - what the law expects ?

• The rule (PD3AB §5.3–5.4): the court should not act as a stand-in advocate. If any “alternative” to normal cross-examination is used (e.g., written questions), the court must identify it and give reasons in the order.

• Re Z [2024] EWFC 22 (President): if no QLR can be found despite diligent search, the court should list back within a short period (≈28 days) and work through a menu of options: adjourn to keep searching; allow time for you to instruct your own advocate; review whether a fact-find/oral evidence is truly needed; consider written questions or other measures. Only as a last resort may the court ask the questions—and even then it must stay neutral, avoid “entering the arena,” and ensure the party’s case is put fully, properly and fairly with ground rules in place.

• Serafin v Malkiewicz [2020] UKSC 23: judicial interventions should be infrequent; judges must remain above the fray. Over-involvement risks an unfair hearing.

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Step-by-Step: What to Do at the Hearing if There’s No QLR

1. Raise it immediately (politely, on the record).“Your Honour/Sir/Madam, there is currently no QLR appointed. May I ask what steps have been taken to locate one and what the outcome of those searches is?”

2. Ask the court to follow the Re Z sequence.

   • Adjourn briefly to continue the QLR search; or

   • Adjourn to let you instruct your own advocate (at your expense, if you wish);

   • Review whether a fact-find/oral evidence is actually required;

   • Consider alternatives (e.g., written questions lodged in advance);

   • Only then, if unavoidable, the court to ask questions—not as adversarial cross-examination, but in a neutral, managed way.

3. Quote the rule.“PD3AB §5.3 says a satisfactory alternative does not include the court conducting cross-examination for a party. If an alternative is used, §5.4 requires reasons to be recorded.”

4. If questions will proceed today, ask for safeguards.

   • A short Ground Rules Hearing first (PD3AA principles).

   • Permission to file your questions in writing (and add follow-ups as needed).

   • The court to explain the process and confirm it will remain detached and neutral.

5. Note-taking (protect your appeal position).Record: what steps the court says were taken to find a QLR; whether an adjournment was refused (and why); whether written questions and ground rules were used; who asked which questions; any fairness issues you observed.

6. If fairness can’t be secured, renew your adjournment request.Ask for a short adjournment, a return date, and directions for ongoing QLR search plus written questions in the meantime.

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Bottom line

• Can the judge/lay justices/clerk conduct cross-examination? Generally, no. The default is to secure a QLR. Only if all proper steps fail may the court put questions—and then carefully, with neutrality and safeguards.

• Felt the court “took over” questioning without safeguards? You may have a procedural-unfairness ground to appeal or seek a re-hearing.

  
  

By William Slivinsky, W-S Paralegal ServicesProfessional guidance and paralegal services for litigants in person.