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When worlds collide

One of the things you generally expect when lawyers appear against one another is that things do not become personal. That indeed is the general rule. It is something which clients often find perplexing. Sometimes the atmosphere in court is very civilised, others less so. You can have the advocates apparently at one another's throats. However the clients can then be somewhat bemused if the opposing lawyers go off for a drink or a coffee afterwards.

It is probably fair to say that, save in certain specialised sectors, the position is rather different than it used to be. Not in terms of lawyers disliking one another necessarily, but because of the way the legal profession has expanded, people no longer necessarily know one another, save in restricted geographical or jurisdictional markets. There may still be areas where at a certain level people come across each other frequently, but the Bar has expanded so much that more typically people do not know one another. That of course does not mean that they will behave with anything other than complete courtesy, but it does change the overall dynamic. Or so one would think in most cases, but sometimes extreme familiarity breeds nothing but contempt.

Many years ago when I was quite junior I went to a distant County Court to undertake a trial. I remember it principally for the fact that it took hours to get there, and when the case did not finish in the allotted day it had to be put off to another date. When I was asked for my preference, I said amongst the dates to avoid was a certain date because that was the day after the Chambers Christmas party. They duly fixed it for that date, which meant that having left the party in the early hours I had to be in my car before 6 AM to drive there for another day in court.

However there was a more particular memory than that about this case, and that concerned my opponents. This was a case in which there were two defendants, and I acted for one. A local barrister acted for the other defendant, and a different local barrister acted for the claimant (or plaintiff as it was then called). In a sense each advocate was pitted against each of the others, because the two defendants did not necessarily stand or fall together. That meant that one defendant in avoiding liability might actually end up foisting liability on the other. In the same fashion both defendants might succeed in avoiding liability for both completely. Or the plaintiff might win against everyone. Therefore in a sense, everyone was against everyone else.

I had no trouble on a personal level with either of these barristers, who both came across as reasonably pleasant. However it was soon clear that the two loathed each other with a passion. Moreover, it was also clear that every case was like Groundhog Day, because on nearly every occasion one was for one side and the other was for the other. Whatever had started it, it was as if they were locked in some terrible dance of mutual animosity for the bulk of their careers.

In an attempt to shorten the trial I was making various suggestions which I thought worked for everybody. I would speak to one of the barristers who would say "that seems sensible, but such and such (the other barrister) will never agree to that in a million years.". I would then patiently asked them if they would agree to it and leave the other barrister to me. I would then ask the other barrister, who again would say that the suggestion seemed sensible, but that they did not believe that when it came down to it the other barrister would ever agree to it. When I would then report back to the first barrister, they would express incredulity that the other one had agreed, and would say words the effect of "how on earth did you ever manage that?". It was apparent that the state of relations between was such that neither could respond sensibly to a suggestion from the other, with the consequence that neither could ever respond sensibly at all.

Eventually counsel for the plaintiff was certainly the happier of the two, because they succeeded against the other defendant (albeit that the claim against my defendant was dismissed). I wondered whether, in the festive spirit of Christmas since this adjourned final day of the case to took place on something like December 22, I should try and in some way mediate between them. Then I thought better of it. I had a long journey ahead and there was no point wasting time upon the apparently impossible.

Michael J. Booth QC