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Judicial Collision part 4

Another type of judicial collision which occurs arises where the judge is being slow or stupid. It is far more likely to be the former than the latter, and this, albeit rare at any level, is more usually associated with lower levels of the judiciary particularly where they are allocated cases which are totally outside their areas of practice or expertise. (Someone might be a fantastic bricklayer, but you would not expect them necessarily to be a good decorator, and albeit not a direct analogy sometimes judges are good at criminal cases and rubbish civil cases or vice versa, or sometimes judges who do civil cases can end up on a case which is very different from their usual type of case and can make mistakes through thinking they can take shortcuts in the same way as with territory where they are familiar, when they manifestly cannot).

It is precisely because these problems on the rare occasions when they do occur are more likely to occur at the lower levels that mean that it is often extremely junior barristers or advocates who will have the problem of trying to deal with them.

A very junior barrister was once acting for a tenant who had significant protection under the then rent act legislation. This effectively meant that the landlord could not get rid of the tenant as long as the tenant complied with the terms of his weekly lease. The landlord wanted to be rid of the tenant, because he had an opportunity to sell the house for a whopping great profit, and so while the tenant was off on a friend's stag weekend the landlord changed the locks and threw his possessions (such as they were) out into the street. After a good weekend away, the young man returned to find himself without a home.

With the assistance of legal aid funding (which used to be much more readily available in those days to allow people to enforce their civil rights than is now the case) he brought proceedings seeking various remedies. He then straightaway brought an application for an injunction. That was for an order that the landlord changed the locks and allowed him back in. The proceedings sought that as a final order, and also sought damages. The damages sought included exemplary damages which are essentially damages designed to go beyond compensating the injured party but to punish the wrongdoer to teach them that wrongdoing does not pay. In most cases such punitive damages will not be available. Therefore the landlord was faced with not only compensating the tenant for the inconvenience, but the possibility that the court trial might say that the landlord was trying to make a profit of X by flagrantly ignoring the tenant's rights so that the landlord could sell the house, and to discourage him and other landlords from such outrageous behaviour a substantial sum should be paid to the tenant. However the first step was to get the order permitting the tenant back into the house.

The tenant was an ordinary young man in his early 20s who had a reasonable but not particularly well-paid job and a fondness for evenings out and tattoos. He had no educational qualifications. He had however taken the precaution of pertaining a "plan B." in case he did not get his flat back, and had been told by a friend that if he needed to he could become a lodger in certain rooms at his house, which would help the friend meet his payments and provide somewhere decent for the tenant to live without worrying about whether after an evening out he would find his possessions out on the street.

The landlord was obviously very frightened about what might happen in these proceedings, not just on the injunction but in particular as regards the exemplary damages. He had looked to make a very large profit on a quick sale, and was clearly frightened that the court might award a similar sum by way of damages. He would then have the worst of all possible worlds because he would have a large sum confiscated and still not be able to sell the house. On the injunction hearing therefore, he made an offer. If the tenant would go immediately he would pay him a very large sum. In addition he would pay all of the tenant's legal costs (so that the legal aid fund were reimbursed: otherwise they would have had first claim on any monies paid to the tenant to go towards the costs). To say the tenant was pleased at the offer would be something of an understatement: after he had got over his shock at the amount of money and been reassured that it was not a mistake and he had not misheard, his reaction was a bit like a child who had just been given his own sweet shop, or an alcoholic his own pub. After everything that had happened he was quite happy to go and live at his friends, and this as far as he was concerned was a perfect result.

This of course was just a first hearing for an injunction. Therefore what was required was to treat the injunction hearing as the trial of the action and make a consent order whereby the parties agreed that the application to return to the flat was dismissed, but the damages succeeded in an agreed amount, and the defendant paid the tenant's costs. This was therefore a simple and satisfactory solution.

Since the very junior barrister was for the tenant he stood up and explained to the judge what they were doing, why they were treating the injunction of the trial of the action, and why this was satisfactory to all concerned so that the judge should sign the order. The judge however confessed himself mystified. He did not understand why this was the trial. He was apparently unable to grasp the concept that the uneducated tenant had been able to grasp in a moment. (To be fair the tenant was probably unconcerned about the concept, more concerned about the money).

The much more experienced counsel for the landlord pitched in to help. He offered his own explanation. The judge then said "I don't understand what you're saying either."

This put them in a quandary, not helped by the fact that the expression on the tenant's face indicated that he thought that the judge' s inability to understand what was going on was about to mean that the tenant did not get the money that he thought he was getting. Experienced counsel pitched in with the deciding factor. "Please just sign the order judge" he said. The very junior barrister for the tenant agreed. "Well I don't understand it, but if you both will be to sign the order them I'm happy to do so." said the judge.

The most frightening aspect of this story is that I'm sure that not one word of it has been exaggerated by the sources. It is also probably fair to say that these days you would never find that sort of staggering ineptitude. It was probably the clearest example you will ever get of a judge continuing to sit when age had got the better of him on a very bad day.

Michael J. Booth QC