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Time to say goodbye part five

Last week I indicated that we would look at the case which a recently deceased judge had tried where his desire to see the parties settle led him to take the unusual steps. The particular case was one regarding a property and contents. I acted for the man, and a barrister we shall call Mr Scarlett acted for the woman. Mr Scarlett was about the same call as myself, and I knew him reasonably well. I regarded him as a sensible man and a sound lawyer. Our respective clients had previously been in a relationship and the issue was exactly who had contributed what and on what basis to the property and contents, and what agreement (if any) had been reached. This of course is not the same as a divorce case. In a divorce case the court is determining what happens in the context of the powers it is given under matrimonial law. That means that who owns what is relevant, but the court can make orders regardless of who owns what either as regards what happens to property or what happens in respect of payments from one to the other. If parties are not married the position is different. The relationship breakdown is effectively incidental and the issue will be who actually owned what. As is often the case where there has been a relationship breakdown however, it is not just a question of what happens with the money, important though that is, but there is a strong emotional overlay and overtones of a relationship gone wrong. That does not alter the legal position, but does affect the overall "temperature" of the dispute.

Essentially what the man and the woman were saying about what had been agreed was contradictory. Ultimately it was a question of fact, rather than difficulties about legal principle, that would determine the outcome of this case. The judge was going to have to find someone (on the balance of probabilities test which was to be applied) was to be believed, and the other one was not to be believed.

I had a good relationship with Mr Scarlett so there was never any personal animosity or difficulty about the two of us talking. There was obvious scope for a deal being struck, and no doubt we each had our own view as to whether our client was being reasonable or not, but ultimately the parties were unable to reach terms. We would have liked to reach terms if we could, not least because if you reach terms there is a certain outcome. With a trial you never know quite what will happen. However, we couldn't do a deal, and so we agreed that that was that. We were going ahead with a trial.

Just before the case was due to start, the judge (who of course was the judge who was referred to in the previous article to this) called us in to see him in his chambers. As always, he was charming and polite. He asked if we were close to settling the case. We said we were not, and we could not see that the case would settle. The judge said he thought it ought to settle. We both politely said that we did not disagree with that as a general proposition, but the clients had to be willing to reach acceptable terms. As the judge knew, we could not tell him the content of without prejudice negotiations, and so he would just have to take it from us that we did not believe that the two of them were likely to reach agreement. That being the case we might as well get on with the trial.

It was then that the judge made his amazing intervention. "Do you realise if this trial goes ahead I'm going to have to decide an issue of fact and decide that one person is lying and another is telling the truth. How am I to do that?" (One might have thought that that was the entire basis of being a judge, but it was neither polite nor desirable nor constructive to point that out). However the judge had not finished, adding "I might as well toss a coin to decide this case, so I think your clients should go and settle and I want you to go and talk to your clients.".

We didn't see that this would do any good, but once the judge had put it like that, we agreed to go out and have another discussion. Little did we anticipate what would happen next. We will look at that next week.

Michael J. Booth QC