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Time to Say Goodbye Part three

Sometimes the nature of a valediction can show the esteem in which a particular barrister or judge is held.

Not that long ago a very well respected judge retired who used to sit on Chancery business in the North of England. He had an excellent reputation in all respects. He was pleasant to appear in front of, courteous, well-prepared, never full of himself. Everyone found him equally palatable on social occasions. However more important than that, he had an innate knack of getting to the core of any case. Whether you won or lost in front of him, you usually felt that he had just about got it right. His judgments were usually promptly produced, and covered the necessary matters but just the necessary matters. You were thus not deluged with a judgment that looked like a legal equivalent of Tolstoy's literary lengthy epic War and Peace. (Apart from being user-friendly, this was also sensible. Those judges who produce immensely lengthy judgements not only take far longer to produce them, leading to delay which most litigants do not welcome, but by going into all sorts of incidental minutiae they actually increase the chance that they will get something wrong which one party or the other can seize upon to suggest that that has undermined the whole decision which should therefore be appealed).

When it came to the occasion of his valediction, there was as expected an immense turnout from the Bar. However even more significant than that was the turnout from the bench. The Chancellor of the High Court, i.e. the top judge in Chancery Division, made a special trip to attend and in a speech paid tribute to the judge. What was also interesting was the way that obviously very careful statistics are kept about judges. The Chancellor was able to recite the very small number of cases in which there had been a successful appeal to the Court of Appeal, pointing out that there had also been a couple each way where appeals from the judge had been dismissed then allowed by the House of Lords, or where his judgment had been supported by the Court of Appeal but then overturned by the House of Lords. (He retired before the Supreme Court came into being). It was a very small number of cases considering the number of years the judge had been sitting.

Of course not every judicial farewell is like that. There are some judges in respect of whom practitioners have been literally counting off the days before their retirement. There is an Alfred Hitchcock film in which at least one person attends a funeral in order to make sure that the deceased is actually dead. Various people attend judicial valedictions in the same spirit, to make sure that the particular judge really is properly retired. However it is a little more complicated with a retired judge than it is with a deceased person. Deceased people do not come back. Retired judges can come back and sit as deputies, so it does not necessarily follow that you have seen the end of them.

Sometimes the retirement of a barrister can seem like the end of an era. It is a well for the Bar always to remember the fleeting nature of the legal fame. There are a series of brief illustrated stories called forensic fables, which date back a long way and which I think are out of print but can occasionally be obtained from second-hand legal bookshops. One of those stories talked about two QCs who were the mainstays of a particular branch of law. Whenever one was instructed on one side, the other side felt it had to instruct the other. It said that everyone talked about what would happen to this area of work at the Bar when they were gone, the general consensus being that it would be a disaster. They died or retired at more or less the same time. Needless to say the legal market noticed their absence not a jot. Such it probably is in real life as well.

Next week will begin looking at a particular retired judge who probably missed his correct time and place.

Michael J. Booth QC