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Time to say goodbye part six

As we saw last week my opponent and myself had been left in a difficult position. The clients did not seem prepared to settle. The judge was adamant that they ought to settle. There was an issue of fact which the judge effectively indicated he did not know how to go about resolving. (Astonishing though that proposition was). We left the judge's chambers and had a brief chat. The problem we both had was that we didn't actually see what we could do. We had had a discussion and it had not resulted in a settlement. We knew what our respective positions were, and we didn't see that any settlement could be reached. We were also a little unsure as to what you could or should say to the clients. We had tried hard to settle the case but had failed. Ultimately a case can and should only be settled if the clients want to settle on the terms available. Neither of us had any enthusiasm for repeating the judicial "toss a coin" comment. There was always a danger that our respective clients would (entirely erroneous) think that either or both of us were trying to settle the case against their interests because for some reason we did not want to do the trial, or feel pushed into settling. At the same time, given the judge's approach, if we were going to force a trial to go ahead we wanted to make sure that we could at least say we had done everything possible to try and settle it.

Thus off we went and spoke to our respective clients, and then we spoke to one another. The position was completely unchanged. Therefore we told the court usher that we needed the judge in and we were ready to start the case. What would then happen would be that counsel for the claimant (then known as plaintiff) who was bringing the claim would speak first in order to open the case (explain to the judge what the case was about).

It didn't get as far as that. My opponent who was bringing the claim barely got two words out when the judge indicated that he thought this case ought to settle. He addressed himself to both of us. We explained that there had been negotiations and the case had not settled and that therefore there needed to be a trial. He was having none of it. To our astonishment he then repeated more or less word for word, the comments he had made to us in Chambers, saying that in order to decide who was telling the truth he might as well toss a coin. We were then sent off to try and settle the case and the judge left court.

The learned Judge plainly did not have in mind the case of Regina v. Deputy Industrial Injuries Commissioner. Ex parte Moore [1965] 1 Q.B. 456 where Lord Justice Diplock, as he then was, stated at page 488 that "The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. ". (For an instance in the United States of a judge being dismissed for making a decision based on tossing a coin, see the article of Professor Gary Slapper in his column in The Times Legal Section).

I'm afraid at this point I shamelessly took advantage of the attitude of the judge. I already had authority to settle at a particular figure, and I stated that as an open offer (after the judge had left court) and said that I proposed to cross examine the other side client about refusal and reasonableness of attitude if the offer was rejected (which you can do with an open offer). Possibly mindful of what the judge had said, the other side's client accepted. Therefore within about five minutes we had a deal. Needless to say, the judge had a triumphant smile when he came back into court to be told that there had been a settlement of the whole case.

When we were leaving court, Mr Scarlett said to me, "Michael, what have we done? Are we now going to get the coin tossing comment every time we appear in front of this judge?". As it happened, I never heard of it ever happening again. Perhaps on reflection the judge thought better of it.

Michael J. Booth QC