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When worlds collide part three

Many years ago I was doing a case in the long vacation, the part of the summer when the courts are generally not listing cases. More cases are heard in the long vacation these days than used to be the case, when the Royal Courts of Justice once you got into August had very much an end of term feeling. It was an urgent application for an injunction (which is why it was being dealt with in the long vacation). Sometimes the crush of urgent applications when most judges are away means it can be difficult to find or assign a judge. On this particular application, I was a junior barrister, and my opponent was a very well-known and successful silk from one of the top Chambers. It was difficult to get a judge for the application, since the available judges were committed on other urgent work, which caused a delay of a couple of days. In order to get round this shortage, in the end one of his fellow silks from Chambers who sat as a deputy judge was appointed so as to resolve the difficulty of having no judge to sit on the case. A judge would have been found, but there was a risk we would have ended up waiting for a few more days.

I was asked by my clients if that would be a problem. I said it would not be a problem for two reasons. The first and most important was that people sitting as judges will be independent. It makes no difference whether or not you are appearing against their best friend, they are duty bound to apply the law and hear cases fairly, and that they will do. Therefore the barrister who was hearing the case could be relied upon to be fair and impartial. (It may be thought that this is an obvious point, and indeed it is, but it is important that the client had this clarified: otherwise there is always a risk that a client would perceive there is being bias when there was none, because sometimes you will interpret everything you see in the way you are expecting to see it). However my second point was that in fact this appointment could count in our favour. I said that in general people being colleagues in Chambers was no guarantee that they were friends. For all we knew they could be sworn enemies. Whilst that would not affect how the judge acted, I felt that it might make things harder for my opponent. He was a noted silk against (let us be frank) from the point of view of his colleague some junior who they had never heard of. If the two silks did not get on, this would I felt put considerable pressure on my opponent, albeit subconsciously. If the case was not going well, he might feel to some extent humiliated in front of someone he did not get on with, if he felt that it was making him look stupid in terms of not succeeding in a case against someone much more junior. It effectively made it a no win situation for him. The same might apply to some extent if the judge was a close friend, because at the back of the silk's mind would be the idea that if things did not go well in court for him, this was something he might find himself being teased about. I have absolutely no idea whether the judge was his best friend, his worst enemy, or something in between. Whichever it was, knowing the dynamic of how people are in Chambers with one another, I felt that there was no downside to appearing in front of a colleague, and if anything there was with the chance that subconsciously it would undermine my opponent.

As it happened the case went well from our point of view: there was nothing wrong with the performance of the barrister on the other side, so whether he ever got teased about it by his colleague I do not know.

Michael J. Booth QC