Judicial Collision part 6

We have looked at issues regarding cross examination where there is conflict with the judge. Various instances given have demonstrated that it will often be the barrister at fault. That is not inevitably the case.

A young barrister was once appearing in front of the particularly dense judge referred to in Judicial Collision part 4. (In this particular instance I have to be particularly careful to disguise both the source and the judge. Usually that is easy, but with this particular judge there were things which used to happen in front of him which could have happened in front of no one else. After I told one such story, one of the people listening, another judge, was immediately able to name who this particular judge was. I suppose one should be thankful that idiocy in the judiciary is so rare as to be readily identifiable). It was this barrister' s first civil trial. It was a case about a building contract. Building contract work is the equivalent of the gherkin in the legal world. It is very much an acquired taste which most people never acquire a taste for. However for a junior barrister you take any trial you can get. The junior was most excited and considered he had a line of cross examination which would prove particularly effective.

To be fair, this was not boring in the way that some types of building contract litigation can be. What sends many people to sleep are the pieces of litigation where the issue between the parties consists of argument over about 300 different small pieces of work (Windows, slates, gutters etc) and whether they were done properly or not. In this case there was really one issue and that was whether the contract was a fixed-price contract or whether it was a variable price contract in which case the amount of money to be paid was a reasonable sum.

Let us take the example where you engage a builder to build a conservatory. You may have agreed plans, so there is no doubt as to what work needs to be done. The contract can be structured in a number of different ways. The builder may say I will do it for £10,000. That means that if the builder can build a satisfactory conservatory quickly he will make more of a profit. If it takes longer than he will make less profit. Fixed price means fixed price. You have agreed what you are going to pay and the mere fact that the work may take less time than anticipated or more time than anticipated is neither here nor there. I once had a builder do some work for me for a fixed price and when it took him longer than anticipated he wanted more money. I said to him "If you had finished a week early, and I had said to you although I have agreed to pay you £20,000 I am now not going to do that will pay you less, would you have thought it was fair?". "No" he said. "Then it can't be fair the other way. " I said and he agreed. That is the whole point of a fixed-price. You know where you stand.

In this case the owners of the property said that there was an agreement at a fixed price. The builder said there was not, and wanted to charge by the number of hours which had been worked. The owners did not dispute the number of hours worked, nor did they dispute that the charge for those hours would have been a fair price if they had agreed to pay by the hour. Their point was that they agreed to no such thing. What was significant was that nowhere was it suggested that the owners had ever asked what the impact on the price was going to be by the extra time taken, or asked for an indication of how many hours would be spent. In other words the owners did not do any of the things that you would have expected them to do if in fact they had to worry about what the eventual bill would be. Their acts were entirely consistent with the price having been agreed and the question of how long the builder spent being a problem for the builder.

The idea of cross examination was to show that if it had not been a fixed price, one would have expected certain conversations to occur and they did not. That would have tended to indicate that there was a fixed price in place.

The judge could not follow this at all. Firstly, because there was no issue about the reasonableness of the price if it had not been a fixed price contract, he seemed to have it in his mind that the case for the defendant was that it should not have to pay a fair price. This was ludicrous. Moreover every time a question was asked about what conversations would have occurred had it been a variable price contract for a reasonable sum, the judge kept interrupting and saying "But it's your case that it was a fixed price contract". He simply could not grasp that when you say that one thing occurred, you are entitled to explore what you would have expected to happen if something different had occurred. It is a simple point, but one he did not grasp. He decided the case against the junior counsel.

The junior counsel was somewhat disconsolate after the case had finished. His more experienced opponent was talking to him as they left the court. "Don't worry," he said, "It's not your fault. This judge has done that to all of us at some stage or another. He might be doing it to your opponent next time you're in front of him. Everyone has their own horror story to tell about him. If you think what happened to you was bad, I have a much worse story to tell you." In that he was entirely right, and that is the story we will hear next week.