HHJ Pennyweather, the legal arms race and grumpy old judge syndrome – @theiclr

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Sometimes I really think that the supposedly cleverest people in the world are in fact the most stupid. A case which came before me last week illustrates this point perfectly. It started life as an uncomplicated personal injury matter which should have settled out of court many years ago. But instead what happened was that the solicitor in his wisdom passed the case to a barrister for advice. All well and good except that this clever young and earnest barrister was out to make a name for herself and thought the case was in fact far more important and complicated than it actually was. So she advised bringing in leading counsel. Said solicitor then passed this advice first to his client and then to the legal expenses insurers who duly brought in a very learned and esteemed Queen’s Counsel.

But this is where the stupidity arises since as soon as the other side realised that they’d be facing a much more senior barrister in court they decided that they too needed to instruct equally learned and esteemed leading counsel if they were to avoid being massively out-gunned and have any chance of winning whatsoever. So then we had two barristers instead of one on each side and probably four times the costs to boot. The problem is that it’s like a never-ending arms race or I suppose a very expensive game of chicken where each side simply matches the other and cancels out the advantage. Which ultimately leaves them all in no better position than if they’d just gone along with their original cheapo lawyer in the first place.

Now when I came to give judgment I made it very clear that I found for the claim for perfectly good reasons that would be impossible to appeal. But if you want the real truth then you should listen to my wife. She pointed out many years ago that my actual reasons for deciding a particular way are many and varied and rarely have anything to do with the law and only occasionally with the facts. In this particular case it had a lot more to do with the fact that one side provided case reports from the splendid ICLR online which to be fair is I think a perfectly legitimate reason in itself. But sometimes it can be as superficial as a barrister donning clip-on braces (a pet hate of mine) or perhaps threatening me with appeal or using the phrase ‘With the greatest respect’. Whatever it might be, I have long since given up trying to self-justify the outcome on other grounds. Judicial caprice is how my wife politely describes it even though grumpy old judge syndrome is what she usually calls it.

So unless you have a crystal ball and think you can predict the mood of a grumpy old judge (an impossible task according to my wife) or you plan on playing the cunning ICLR card, then I’d say you’d be far better off not spending a penny on lawyers and instead simply agreeing to draw straws at the beginning of the process and sticking with whatever comes from that. Because unless you do the only people who are going to win are the lawyers.

Which come to think of it, makes me think that they are perhaps not as stupid as they perhaps first appear.

May 6, 2013 · Tim Kevan · Comments Closed
Posted in: ICLR