Time to Say Goodbye Part Four

Last week we said we would look at the career of a particular judge. This was a judge who died recently who probably missed his time and his vocation. He really should have stuck to mediation but at the time he started mediation was not really viable because the whole "alternative dispute resolution" circus (not using that in a pejorative sense) had not yet commenced to operate. Indeed he became a judge before the whole thing started.

This judge retired sometime ago. He was popular in the sense that he was a very pleasant man, and he also knew the law, but conflict was utterly alien to his nature. This meant that he was somewhat averse to the idea of making decisions. One might have thought that being able to make decisions was an absolute prerequisite to being a judge, but apparently not in his case. His former clerk had said that when the judge had been a barrister his practice was mainly advisory, but on the occasions when he had had to go to court, he had always suggested to clients that they ought to "get around the table" and sort out their dispute that way. That was all well and good, but what if you couldn't?

When I was a very junior barrister I appeared on an application before this judge. In the Chancery Division there are "applications days" (originally known as motions day) when applications in cases are listed. This is where in an ongoing case one side or other needs an order either to stop someone doing something, or make them do something, or just to give the directions as to how the matter proceeds to a trial. There will be any number of cases listed. Some of them will be relatively short. Others will be about the terms on which the application should go off to be heard on another date (if the application is going to take longer than two hours a date needs to be fixed for it and the only issue will be what happens in the meantime and what orders need to be made to cover that). Other applications which are going to last for less than two hours may end up being heard, as long as the court has sufficient time that day. I was against another very junior barrister, a pretty and charming girl who had not appeared in front of this judge before, and who I had not met before.

Our application was one which was going to have to go off to another day because it was going to take a day to hear. Therefore the only thing that had to be determined were the terms of the adjournment and which directions should be made. Myself and the other barrister had rather different views. My opponent suggested to me that it shouldn't take long for the judge to sort out which side he favoured. I told her that I agreed, but I would believe it when I saw it. I told her what this judge was like, and that we would struggle to get him to make directions if you thought we ought to be able to agree them. Since however we couldn't agree we decided to ask the judge to decide. I did warn her that I didn't think the judge would be impressed that we had not managed to reach agreement. I think she thought I was bluffing.

We went in to mention the case. I explained that we could not agree terms and so wanted a short hearing before the judge for him to make any necessary decisions. My opponent stood up and agreed with what I had said. The judge then said he thought we ought to be able to sort it out between us. We both pointed out that we had tried and failed. The judge then addressed me. "Mr Booth, you need to take Miss X outside and talk to her.". I told the judge that it would always be a pleasure to talk to Miss X, but I really didn't see the point because both of us had legitimately talked things through, and we saw no prospect of us agreeing directions and thought the best thing rather than waste time on further talk, was to argue the point and get a decision from the judge. The judge disagreed, and repeated that we ought to talk. I told him it would serve no purpose. The judge said nonetheless that he was telling us to go outside and talk and we had to leave to mention the matter later on.

My opponent had by now very different view of what I had said to her beforehand. I think she thought I was exaggerating the likely judicial response. If anything, it had proved to be even worse than I had suggested. We both took the view that one way or another the judge was going to fiddle around with this, so we came to terms. Nothing disastrous, but there it is.

However there had been a previous occasion in which the judge had intervened in a case of mine in a far more dramatic fashion. We shall turn to that next week.