Judicial Collision part 9

Sometimes the problem with the judge can be a complete failure for counsel and the judge to see eye to eye as to what is appropriate. Sometimes the problem can arise without the judge even appearing to appreciate it.

An experienced barrister was once undertaking a boundary dispute. Boundary disputes do not tend to be disputes which many barristers are wildly enthusiastic about. They can have their points of interest, but those will be explored in a later blog. These are disputes between neighbours which can sometimes be about a right-of-way or sometimes about exactly where the boundary lies between their respective properties. What tends to make these disputes so personal is that for the participants there is no escaping the litigation. Once it has started you are still seeing your neighbours and the disputed territory day in day out. In addition the legal costs can frequently end up being totally disproportionate to what is at stake. Unfortunately, because boundary disputes tend to be at the extreme end of the "Englishman's home is his castle" saying, people will end up going to trial over what is frequently little more than a small patch of dirt.

What makes it worse is that of course even after the dispute is finished the winner will feel they have achieved no more than to establish their rights, and the loser will feel a lasting sense of grievance. The prospect of living next door to one another thereafter may be unappealing for both sides, but usually neither side likes to feel that the other had driven them out.

It follows the boundary disputes tend to be emotionally charged and are often effectively "no-win" litigation, because the victors have continuing problems and have not really got very much for their money, whilst for the losers it is a financial catastrophe. (It can also be an emotional one as well, as not only do they feel cheated that some of occasioning faced with obviously gloating neighbours day after day). It inevitably also follows that a barrister conducting such case has to be astute to the fact that both sides literally and metaphorically feel themselves to be under siege during the trial.

The experienced barrister in this instance was undertaking the boundary dispute from hell. It had got completely out of hand because of the strong feelings on both sides. It largely related to the question as to who could use a particular right-of-way adjoining the respective properties, and for what purpose. Both sides had spent far more than they could afford to lose. Both sides were utterly convinced they were in the right legally and morally. The trial was set to take a few days and was likely to be hard going. We will call the experienced barrister Mister Smith. His opponent we will call Mister Jones.

The judge was an amiable man who perhaps did not always think ahead to how things might look. It so happened that Mister Jones had been a pupil of the judge when the judge was still a barrister. (After your qualification as a barrister, you look to obtain pupillage which lasts for a year with the first half spent purely observing and the second half a mix of observing and actually undertaking some small cases for yourself). The judge obviously knew Mister Jones very well, although as it happened he knew Mister Smith well also. The clients of Mister Jones had brought the claim, and so it was his duty to open the case and outline to the judge what it was all about. He was trying to explain the position of the land and its significance and how the land twisted and turned, but unfortunately due to an error the photographs were not available (although it was planned that the judge would visit the site together with the parties and lawyers). As the judge listened to Mister Jones's explanation of the physical layout and how the lane looked, a sunbeam of understanding came to the judge. "Now Mister Jones" he said, "I just want to be sure I'm getting the picture correctly. You know outside the front door of your house there is a big tree and then the lane bends to the left and then swings round. Are you saying the road here is similar to the way the lane goes outside your own front door?". "Yes.". replied the barrister.

Mister Smith was horrified. The look on his clients' faces said it all. The judge knows the other side's barrister so well that he has not only visited his house but knows it well enough to describe it. Mister Smith knew full well that there was no way that the judge was going to decide the case based upon friendship or knowing one of the barristers well. Those involved in the law are well aware of the ability of judges to set aside personal likes or dislikes. The problem was the effect on Mister Smith's clients. They already regarded themselves as under siege. Now, however much he tried to persuade them to the contrary, they were convinced that the judge was against them. People who are on the defensive rarely perform naturally, and Mister Smith felt that this added strain caused his client to perform poorly in evidence in a way which was seriously adverse to their case. There was no doubt that the judge was only trying to be helpful, and never intended to be anything other than fair, but he had simply failed to think how things would look. It is not always just about doing justice, it is also about ensuring that justice is seen to be done. The judge must not just be fair and impartial, but must be obviously so so that the parties understand and believe that that is the position.