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Judicial Collision part 3

We have talked last week about confrontational issues with judges about recusing themselves, namely agreeing they will not sit on the particular case because there is some reason why they could not fairly hear it. Sometimes it can be just as difficult where you have that application to make where, so far from being difficult, the judge does not get the point and the problem is making a point clear to him without being insulting or patronising.

A barrister was once conducting an accountancy negligence case. That is where someone was suing the accountant saying that the accountant had given him information which no competent accountant could or should have done. At the last moment just before the trial was due to commence, court listing switch the case from one judge to another. That would not normally be a problem, but it so happened that the judge the case was switched to had been linked to this matter. The link was not direct. The claimant was suing an accountant who he said had given him negligent advice which however was not provided officially. It was said to have been provided in the course of a social conversation. The claimant said the advice was wrong, negligent and in consequence he had made certain purchases of shares at a value which proved to be inaccurate. (i.e. he was complaining he had paid too much because of what the accountant had said).

Just about everything was in dispute in this case. What exactly was the impact or effect of what the accountant had said (and the information upon which he had based it given to him by the claimant). Whether any duty was owed (given that the accountant pointed out that this was "off the record" and not a properly researched or considered view). Whether it was reasonable for the claimant to rely upon anything which was stated in such a conversation, and finally whether the claimant did in fact rely upon anything which was said. The reason for this last point was that the deal that he had originally struck to purchase the shares was against the background of legal proceedings that he had instituted against the ultimate seller of the shares in the course of which the claimant had used solicitors and two different barristers. Normally they would advise as to what valuation evidence was necessary and if a deal was struck then at least arguably what they had advised (or in some circumstances failed to advise) could have been the cause of purchase rather than anything the accountant said (even had he said it and had there been a duty).

The judge as it happened had been one of the two barristers acting for this particular client in the proceedings against the seller of the shares. To be fair, his involvement had been relatively brief, but nonetheless his position and what he had an advised was it least potentially relevant to one of the grounds of defence. (For example ultimately there could have been an issue as to whether the claimant was really relying on anything the accountant had said, or even more as to whether if he had purchased for too much the real reason was because of advice given or not given by his own legal team hence potentially including the judge). It was therefore obvious to the barrister that the judge could not try this case. It was equally obvious to the barrister's opponent, counsel for the claimant, who before they went into court agreed that the judge could not try the case. What they expected was that as soon as the circumstances were briefly outlined, the judge himself would say "well it's absolutely obvious that I cannot try this case.".

To their surprise the judge took a different tack entirely. He was not aggressive or insulted or bothered in the slightest. He simply could not see the problem. He said he did not remember the client. He also said he had no recollection whatsoever of what advice he had or hadn't given. Against that background he did not see that there could be any possible problem. He was not being anything other than pleasant about it, but he simply did not grasp the existence of the difficulty at all.

This made the application a little difficult for the barrister. He could hardly say that this was so obvious that it went without saying, because that would be tantamount to telling the judge that the judge was incapable of spotting the most obvious point imaginable. He therefore had to carefully precisely and painstakingly take the judge through the various scenarios and point out all the ways in which this could potentially lead to a difficulty. After 20 minutes of careful explanation the judge still did not grasp it. "I'm bound to say I can't see it myself Mr X.," the judge pronounced, "but I accept that if you think there is a problem and you are asking me not to sit because of that the best and safest course is that I do not try this case.". The barrister managed to restrain himself from saying "Hallelujah" and indicated to the judge that with regret he felt the judge should not sit. With some difficulty the problem was removed without managing to insult the judge.

Michael J. Booth QC