Blast from the past-part 3
For those who have never appeared before the Law Lords, or never been present at such a hearing, the way the hearing proceeds can seem bewilderingly brutal.
That is not because their Lordships are in any way impolite. Far from it. They are merely relentlessly pursuing whatever lines of argument they are considering. You have to look at it from their point of view. Whatever decision they eventually reach has huge implications for all sorts of cases. Their decisions will be pored over by academics and practising lawyers. What they say is likely to affect not only cases on the same point, but other cases where people will try and discern what the law is likely to be or become based on what their Lordships have said. Therefore every proposition has to be relentlessly analysed. That is tested in the furnace of argument. If one sees their Lordships as the hammer that is trying to beat the correct solution upon the anvil of Justice, then counsel is all too often in the position of the piece of metal being hammered.
In the instant case it was clear that different Law Lords had potentially different views. As the appellant I was constantly pressed, particularly by one of their Lordships. Occasionally one of the others would chip in with a supportive point, but by and large it was a constant battle (which is fair enough and what one would expect). When my opponent rose to his feet, if he had been under any illusion that he would receive an easy ride (and I doubt he was) that was soon dispelled. (Occasionally on an appeal, if the court is not impressed with the merits of the appeal then the party responding to the appeal may find themselves with nothing much to do). My former tutor was my opponent’s junior and he followed on with some additional submissions. His treatment was similar.
Of course my former Don is a distinguished academic as well as a junior barrister. There was an amusing moment during his submissions. When a point was raised he said in response "There are two leading articles on this point. One written by my Lord (at this point he gestured to one of the panel), and one written by myself.". At that moment I think he realised that that had come out sounding presumptuous when that was not what was intended at all, so he hastily added "Of course my article is nothing like as distinguished as that of my Lord.".
One of the hardest things in such a hearing is trying to gauge the mood of the panel as a whole. There will usually be two or three whose stance is pretty clear. Those judges who are less interventionist in a particular case can be harder to read. Which side are they on? What points will help sway them? The advocates on each side always are struggling to simultaneously deal with the points that are being raised by any particular judge whilst trying to make sure that they are getting the points across which will appeal to the rest.
I spoke to my former tutor afterwards. Needless to say, since judgment is reserved to be delivered at a later date, neither of us knew the result. After a hearing like that all sides are in a sort of "calm immediately after the storm" sort of mood. I indicated that I hoped it would not be another 28 years before I saw my former tutor again. Time will tell.