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Judicial Collision part 1

Every barrister will clash with the Judge at some stage of their career. Inevitably how you deal with that depends upon all the circumstances.

There are really two underlying factors which must always govern how such conflicts are dealt with. The first is, it is a jury case? Whether in a criminal or civil case (albeit that very few civil cases now use a jury either regularly or at all, one exception being defamation) if there is a jury they decide on the facts although the judge directs on the law. That means that even if you have fallen out with the Judge, the Judge will not be deciding the key facts (and although he or she will issue rulings on the law, those will be transparent and hence appealable if wrong). Therefore, however bruising any fallout, you are not then looking to the Judge to find facts in your favour when you may have irritated the Judge so much so that however impartial the Judge tries to be, he or she confuses his or her irritation at you with what you are saying being rubbish (assuming it is not rubbish!). The second is, how easy it will be to appeal the decision? Appeals used to be far easier to bring than they are now. Many appeals used to be from a Master or District Judge by way of a complete rehearing as of right. That no longer applies. Moreover appeals to the Court of Appeal go through a sifting process to see whether they have real prospects for success. If there are no real prospects for success or no other reason to allow the appeal, no appeal can take place. Thus you may well be stuck with the decision of the person you are appearing in front of. In case of any dispute with the Judge, that means you have to balance the desire to be macho against the possible consequences to the client.

Having said that, some people either have or feel they have the stature to effectively bully or otherwise confront the court. There was once a hearing in the Commercial Court where a newly appointed Judge queried a proposition being put forward by an enormously successful and famous QC. This was someone who probably the Judge, albeit eminent, would have looked up to but a month before when they were both QCs. "You probably are the only judge sitting in the Commercial Court at the moment who would have seen fit to take that point" thundered the QC at the Judge. Although the Judge sought to defend himself, to some extent he had already lost the initiative.

Even more spectacular was the instance of the eminent QC appearing before the Court of Appeal. Nowadays the courts lay down all sorts of requirements about the timescale within which skeleton arguments must be filed (these are the written arguments which set out the "bare bones" of the submissions you will make orally before the court) and exactly how the skeletons must be drawn up and what they must contain. If Counsel (or indeed Leading Counsel) does not file the skeleton argument on time, they can be summoned personally to appear before the Court of Appeal to explain themselves. The rationale for this is that the Court of Appeal need the skeletons in on time so that they can read them and not delay the hearing or progress of the appeal.

On this occasion the particular eminent QC appeared in front of the Court of Appeal to argue an appeal. Before he started, the Senior Judge (there are usually three Judges and the most senior or in any event the one "leading" the appeal will sit in the middle and will usually conduct the proceedings, although the other Lord or Lady Justices will chip in as they see fit) stated as follows: "Mr X, I'm afraid we have not had the opportunity to read your skeleton argument in support of the appeal".

The eminent QC was obviously not very happy. "In that case, I shall return to my chambers. You know where I am. Please send for me when you have read it." With that he walked off, much to everyone's astonishment.

Later that morning he was summoned back on the basis that the Appeal Judges had by then read the relevant skeletons. Before the eminent QC commenced the appeal, the Court of Appeal were angling for an apology. "You left rather hurriedly this morning." said the Judge leading the appeal, "Do you have an apology to make?".

"Absolutely not.", said the QC. "The rules are very strict. We file skeletons, you read them. If I had not filed my skeleton on time there would have been the most enormous trouble. The quid pro quo for the obligations placed on Counsel, is that the Appellate Judges will actually bother to read the skeletons. There is no case for an apology."

He was probably right, but very few barristers would care to say so, and even fewer would have got away with it.

Michael J. Booth QC